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Roger Williams University Law Review
Volume 14 | Issue 2
Article 2
Spring 2009
Rhode Island Nurse Practitioners: Are They Legally
Practicing Medicine Without a License?
Janette A. Bertness
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Bertness, Janette A. (2009) "Rhode Island Nurse Practitioners: Are They Legally Practicing Medicine Without a License?," Roger
Williams University Law Review: Vol. 14: Iss. 2, Article 2.
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Rhode Island Nurse Practitioners: Are
They Legally Practicing Medicine
Without a License?
Judge Janette A. Bertness*
I. INTRODUCTION
There is an evolving trend in health care to use mid-level
practitioners a.k.a. physician extenders, to provide health care
services traditionally performed by physicians (MDs). 1 Mid-level
practitioners include advanced-practice nurses and physician assistants. 2 An advanced-practice nurse (APN) is a registered nurse
who is also licensed to practice in an advanced role. 3 The designation "advanced practice nurse," includes: certified registered nurse
anesthetist (CRNA); clinical nurse specialist (CNS); certified
* This article is a dissertation submitted in partial fulfillment of the requirements for the degree of Master of Judicial Studies, Trial Court Judge Major
at the University of Nevada, Reno, copyright Janette A. Bertness 2008.
1. See CAROLYN BUPPERT, NURSE PRACTITIONER'S BUSINESS PRACTICE AND
LEGAL GUIDE 2 (Jones and Bartlett Publishers, Inc. 2d ed. 2004); MICHELE
ROTH-KAUFFMAN, THE PHYsIcIAN ASSISTANT'S BUSINESS PRACTICE AND LEGAL
GUIDE 10 (Jones and Bartlett Publishers, Inc. 2006); See, e.g., Sharon Christian et al., Overview of Nurse PractitionerScopes of Practice in the United
States - Discussion, U.C.S.F. Center for the Health Professions (2007), available at http://www.futurehealth.uscf.edu/publications/index.htm; Roderick
Hooker & Linda McCraig, Use of Physician Assistants and Nurse Practitioners in Primary Care, 1995-1999, 20 HEALTHCARE QUARTERLY 231 (2001). The
designation "MD" will refer to all licensed physicians trained in allopathic
medicine or osteopathic medicine.
2. 21 C.F.R. § 1300.01(b)(28) (2008).
3.
R.I. GEN. LAws § 5-34-3(1) (2004) (stating .'[a]dvanced practice nurse'
means the status of qualified individuals who hold an active license as a registered nurse and an active license as a nurse in an advanced role as defined
under the provisions of this chapter or chapter 5-34.2").
215
216 ROGER WILLIAMS UNIVERSITY LA WREVIEW [Vol. 14:215
nurse mid-wife (CNM); and nurse practitioner (NP).4 A physician
assistant (PA) is a "health care professional who has graduated
from an accredited PA educational program and is authorized by
the state to practice medicine under the supervision of a licensed
5
physician."
In Rhode Island, NPs are legislatively authorized to practice
their profession autonomously. 6
Previously, Rhode Island NPs
who qualified for prescriptive privileges were required to prescribe
medication according to annually updated guidelines written in
collaboration with an MD consultant. 7 In 2008, the Rhode Island
4. A nurse anesthetist performs a narrow range of services to people receiving anesthesia including preoperative assessment, administering anesthesia and post-anesthesia recovery. A clinical nurse specialist provides specialty nursing care to a narrow patient base. The services may include
research, consultation, education, case management and direct patient care.
A certified nurse midwife provides direct care to women during pregnancy
through delivery and post-partum. They may also provide well gynecologic
care. Nurse practitioners provide a wide range of care including primary care
involving evaluation, diagnosis, treatment, education, case management and
well care. BUPPERT, supra note 1, at 3; see also R.I. GEN LAWS §§ 5-34-3(3)
(2004), 5-34.2-2 (Supp. 2008).
5. ROTH-KAUFFMAN, supra note 1, at 1.
6. R.I. GEN. LAws § 5-34-3(3) (2004) (stating a '[c]ertified registered
nurse practitioner' is an advanced practice nurse utilizing independent knowledge of physical assessment and management of health care and illnesses.
The practice includes prescriptive privileges. The practice includes collaboration with other licensed health care professionals including, but not limited
to, physicians, pharmacists, podiatrists, dentists and nurses").
7. See R.I. GEN LAws § 5-34-39 (2004), provides as follows:
(a) Prescriptive privileges for the certified registered nurse practitioner:
(1) Shall be granted under the governance and supervision of the
department, board of nurse registration and nurse education;
and
(2) Shall include prescription of legend medications and prescription of controlled substances from schedules II, III, IV and
V that are established in regulation; and
(3) Must not include controlled substances from Schedule I.
(b) A certified registered nurse practitioner (R.N.P.) as stated in § 534-3 is permitted to prescribe in accordance with annually updated
guidelines, written in collaboration with the medical director or physician consultant of their individual establishments.
(c) To qualify for prescriptive privileges an applicant must submit on
forms provided by the board of nurse registration and nursing education, verified by oath, that the applicant has evidence of completion
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PRACTICING WITHOUT A LICENSE
217
legislature eliminated the guideline requirement allowing NPs to
prescribe any medication that an MD can prescribe. 8 Absent this
requirement, NPs may provide professional health care services
without any MD supervision or collaboration. Effectively, they
may practice their profession autonomously in the same manner
as an MD.
I will test the hypothesis of whether NPs are "practicing medicine" as legally defined in Rhode Island. I will do this by comparing NPs with PAs and MDs from a medical-legal perspective. I
have included PAs in this comparison because they render many
of the same services as NPs, and their services are considered
practicing medicine under the supervision and control of an MD. 9
I will discuss differences in education, training, scope of practice,
services provided, standard of care, licensing requirements, and
public perception. To date the issue of whether independently
practicing NPs are practicing medicine has never been addressed.
Based on my findings, I will propose legislation to clarify the NP's
role in Rhode Island.
II.
DEFINITIONS OF PHYSICIAN, NURSE PRACTITIONER AND PHYSICIAN
ASSISTANT
A. What is a Physician?
According Taber's Cyclopedic Medical Dictionary, "physician"
is: "A person who has successfully completed the prescribed course
of studies in medicine in a medical school officially recognized by
the country in which it is located, and who has acquired the requisite qualifications for licensure in the practice of medicine." 10
of thirty (30) hours of education in pharmacology within the three (3)
year period immediately prior to date of application. To maintain
prescriptive privileges the certified registered nurse practitioner
(R.N.P.) must submit upon request of the board of nurse registration
and nursing education evidence of thirty (30) hours continuing education in pharmacology every six (6) years.
8.
9.
10.
See R.I. GEN. LAWS § 5-34-39 (Supp. 2008).
ROTH-KAUFFMAN, supra note 1, at 1.
Clarence W. Taber, TABER'S CYCLOPEDIC MEDICAL DICTIONARY, 1506
(F.A. Davis Company 17th ed. 1993) [hereinafter Taber's]; but cf., SAIF Corp.
v. Johnson, 108 P.3d 662, 666 (2005) ("physician" is anyone licensed to practice a healing art for purposes of workers' compensation, and that definition
218 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
"Physician" is defined by Rhode Island law as "a person with a license to practice allopathic or osteopathic medicine in this state
11
under the provisions of this chapter."
B. What is a Nurse Practitioner?
According to the American Academy of Nurse Practitioners:
Nurse Practitioners are licensed independent practitioners
who provide primary and/or specialty nursing and medical care in
ambulatory, acute and long-term care settings. They are registered nurses with specialized advanced education and clinical
competency to provide health and medical care for diverse populations in a variety of primary care, acute and long term care settings. Master's, post master's or doctoral preparation is required
for entry level practice. 12
Federal law defines nurse practitioner and physician assisdoes not limit the ability to provide medical treatment to those with a medical degree); Driver v. Rod & Reel Rest., 866 P.2d 512, 513 (1994) (physical
therapist is a "physician" entitled to measure claimant's impairment for purposes of workers' compensation); Cook v. Workers' Comp. Dept., 758 P.2d
854, 859, 861 (1988) (NP is a physician under Workers' Compensation law)
(dissent: legislative intent not to make NP equal to physician).
11. R.I. GEN. LAws § 5-37-1(13) (2004). Rhode Island law does not define
the terms "allopathic" or "osteopathic" medicine. According to Taber's, supra
note 10, at 72:
"allopathy" is a:
1. System of treating disease by inducing a pathologic reaction
that is antagonistic to the disease being treated.
2. A term erroneously used for the regular practice of medicine
to differentiate it from homeopathy. Id.
"Osteopathy" is defined as:
A system of medicine based upon the theory that the normal
body is a vital mechanical organism in which structural and
functional states are of equal importance and that the body is
able to rectify itself against toxic conditions when it has favorable environmental circumstances and satisfactory nourishment.
Therefore, it is the osteopathic physician's responsibility to remove any internal or external abnormalities of the system. Although using manipulation for the most part to restore balance,
osteopaths also rely upon physical, medicinal, and surgical methods. Osteopathy, which was founded by Dr. Andrew Taylor
Still (1828-1917), is recognized as a standard method or system
of medicine and surgical care. Id. at 72.
12.
STANDARDS OF PRACTICE FOR NURSE PRACTITIONERS §1 (Am. Acad. of
Nurse Practitioners 2007).
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PRACTICING WITHOUT A LICENSE
219
tant in terms of individual state law as follows: The term 'physician assistant' and the term 'nurse practitioner' mean, for purposes of this subchapter, a physician assistant or nurse practitioner
who performs such services as such individual is legally authorized to perform (in the State in which the individual performs
such services) in accordance with State law (or the State regulatory mechanism provided by State law), and who meets such training, education, and experience requirements (or any combination
thereof) as the Secretary may prescribe in regulations. 13
According to Rhode Island law a certified registered nurse
practitioner' is "an advanced practice nurse utilizing independent
knowledge of physical assessment and management of health care
and illnesses. The practice includes prescriptive privileges. The
practice includes collaboration with other licensed health care professionals including, but not limited to, physicians, pharmacists,
podiatrists, dentists and nurses." 14 Nowhere does Rhode Island
law define what is meant by "includes collaboration."' 15
13. 42 U.S.C.A. § 1395x (aa)(5)(A) (Supp. 2008).
14. R.I. GEN. LAws § 5-34-3(3) (2004). Rhode Island General Laws § 5-343(1) (defining "[a]dvanced practice nurse" as: the status of qualified individuals who hold an active license as a registered nurse and an active license as a
nurse in an advanced role as defined under the provisions of this chapter or
chapter 5-34.2"). Chapter 5-34.2 pertains to nurse anesthetists. Certified
registered nurse practitioners in Rhode Island may use the abbreviation
"R.N.P." R.I. GEN. LAWS § 5-34-38 (2004).
15. Federal law defines the term "collaboration" as it pertains to nurse
practitioners as follows:
The term "collaboration" means a process in which a nurse practitioner works with a physician to deliver health care services within
the scope of the practitioner's professional expertise, with medical
direction and appropriate supervision as provided for in jointly developed guidelines or other mechanisms as defined by the law of the
State in which the services are performed. 42 U.S.C.A. § 1395x
(aa)(6) (Supp. 2008).
BLACK's LAw DICTIONARY defines the word "include" as follows:
To confine within, hold as in an inclosure, take in, attain, shut up,
contain, inclose, comprise, comprehend, embrace, involve. Term
may, according to context, express and enlargement and have the
meaning of and or in addition to, or merely specify a particular thing
already included within the general words theretofore used. BLACK'S
LAW DICTIONARY 777 ( 5 th ed. 1979) [hereinafter Black's].
220 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
C. What is a Physician Assistant?
A physician assistant is "a health care professional who has
graduated from an accredited PA educational program and is authorized by the state to practice medicine under the supervision of
a licensed physician." 16 According to Rhode Island law, 'Physician
Assistant' means "a person who is qualified by academic and practical training to provide those certain patient services under the
supervision, control, responsibility and direction of a licensed physician."
17
16. ROTH-KAUFFMAN, supra note 1, at 1.
17. R.I. GEN. LAWS § 5-54-2(9) (2004). See also R.I. GEN. LAWS § 5-542(10) (2004) (defining "supervision" as:
overseeing the activities of and accepting the responsibility for the
medical services rendered by the physician assistants. Supervision
is continuous, and under the direct control of a licensed physician
expert in the field of medicine in which the physician assistants
practice. The constant physical presence of the supervising physician or physician designee is not required. It is the responsibility of
the supervising physician and the physician assistant to assure an
appropriate level of supervision depending on the services being rendered. Each physician or group of physicians or other health care
delivery organization excluding licensed hospital or licensed health
care facilities controlled and operated by a licensed hospital employing physician assistants must have on file at the primary practice
site a copy of a policy in the form of an agreement between the supervising physicians and physician assistants delineating:
(i) The level of supervision provided by the supervising physician
or designee with particular reference to differing levels of supervision depending on the type of patient services provided and
requirements for communication between the supervising physician or designee and the physician assistant.
(ii) A job description for the physician assistant listing patient
care responsibilities and procedures to be performed by the physician assistant.
(iii) A program for quality assurance for physician assistant services including requirements for periodic review of the physician
assistant services.
(iv) Requirements for supervision of physician assistants employed or extended medical staff privileges by licensed hospital
or other licensed health care facilities or employed by other
health care delivery agencies shall be delineated by the medical
staff by laws and/or applicable governing authority of the facilty.
(v) The supervising physician or physician designee must be
available for easy communication and referral at all times).
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PRACTICING WITHOUT A LICENSE
221
III. HISTORY
A. Regulated Medicine
The United States has regulated medicine since colonial
times.18 Laws initially concerned disease control and nuisance
abatement.19 The states shifted regulatory emphasis from public
health to the medical profession following the civil war when a
20
scientific basis developed for understanding disease process.
Thereafter, states began to distinguish the practice of medicine
and prohibit ineffective and dangerous treatments. 2 1 States defined the "practice of medicine" by the manner of diagnosis and
treatment used by physicians who met state licensure requirements. 2 2 'This effectively delegate [d] the definition of appropriate
medical practice to medical schools, residency programs and their
'2 3
private accreditation agencies.
B. The Birth of NPs and PAs
NPs and PAs first developed in the United States in the mid1960s in response to a shortage of MDs in primary care. 24 The
purpose was to increase health care for the underserved in urban
and rural areas. 2 5 NP education was first developed as a master's
degree program at the University of Colorado in 1965.26 Similarly, the first class of PAs graduated from Duke University Medical
18. Thomas R. McLean, Crossing the Quality Chasm: Autonomous Physician Extenders Will Necessitate a Shift to Enterprise Liability Coverage for
Health CareDelivery, 12 HEALTH MATRIX 239, 244 (2002).
19. Id.
20. Id.
21. Id. at 245.
22. Id.
23. Id. (quoting Edward P. Richards, The Police Power and the Regula-
tion of Medical Practice:A HistoricalReview and Guide for Medical Licensing
Board Regulation of Physicians in ERISA-Qualified Managed Care Organizations, 8 ANNALs HEALTH L. 201, 211 (1999)).
24. See BUPPERT, supra note 1, at 6; ROTH-KAUFFMAN, supranote 1, at 1.
25. Susan E. Baker, Note, The Nurse Practitionerin MalpracticeActions:
Standard of Care and Theory of Liability, 2 HEALTH MATRIX 325, 326 (1992);
David E. Mittman, Physician Assistants in the United States, 325 BMJ 485,
485 (2002).
26. BUPPERT, supra note 1, at 7; Christian, supra note 1, at 2-3. (The NP
was envisioned as making medical as well as nursing diagnoses. They would
treat patients with medical therapeutics including prescriptive medication).
222 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
Center in 1965.27 States began regulating the practice of NPs and
PAs as they developed. 2 8 Presently all fifty states grant some
form of prescriptive privileges to NPs and nearly all states grant
29
similar privileges to PAs.
IV. PRIMARY CARE
"Primary care" is defined in Taber's Cyclopedic Medical Dictionary as:
"Basic or general health care provided at the person's
first contact with the health care system. Usually this
contact is for common illnesses. The primary health care
provider assumes ongoing responsibility for health maintenance and therapy for illness, including consultation
30
with specialists."
In Rhode Island, the definition of "primary care" as adopted
from the National Academy of Sciences' Institute of Medicine is as
follows: "Primary care is the provision of integrated, accessible
health care services by clinicians who are accountable for addressing a large majority of personal health care needs, developing a
sustained partnership with patients, and practicing in the context
31
of family and community."
MDs, NPs and PAs may all render primary care. 32 It is esti33
mated that 85 % of NPs and 50% of PAs perform primary care.
27.
28.
ROTH-KAUFFMAN, supra note
BUPPERT, supra note 1, at 7.
1, at 1.
29. BUPPERT, supra note 1, at 183-87; ROTH-KAUFFMAN supra note 1, at
315-86; Linda J. Pearson, The Pearson Report, 12 AM. J. NURSE
PRACTITIONERS 2, at 6, 22-23 (2008) (showing prescriptive privileges in all fif-
ty states).
30. Taber's, supra note 10, 1597.
31.
INSTITUTE OF MEDICINE, PRIMARY CARE: AMERICAN'S HEALTH IN A NEW
ERA 1 (Molla S. Donaldson et al. eds., National Academy Press 1996) quoted
in BUPPERT, supra note 1, at 7-8; see also R.I. GEN LAWS §§ 27-68-1(7) (Supp.
2008), 40-8.4-16(7) (2006).
32. See R.I. GEN. LAWS §§ 5-37-2, 5-34-3(3), 5-54-8; BUPPERT, supra note
1, at 37; ROTH-KAUFFMAN, supra note 1, at 2, 4; but see, ROTH-KAUFFMAN, su-
pra notel, at 10 (PA supervising physician provides primary care, not PA; PA
has a job description, not a scope of practice).
33. Roderick S. Hooker, Physician Assistants and Nurse Practitioners:
The United States Experience, 185 MED. J. OF AUSTRALIA 4 (2006). As of 2006
there were 110,000 NPs and PAs comprising one sixth of the medical work
force.
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PRACTICING WITHOUT A LICENSE
223
PA primary care is rendered under the direct "supervision, control, responsibility and direction" of the supervising MD. 34 PA
services are "delegated" by the supervising MD. Therefore, the
35
supervising MD may be held liable for PA malpractice.
MDs and NPs may render primary care independently. 3 6 The
question is whether the primary care rendered by NPs is the same
as the primary care rendered by MDs.3 7 If so; NPs may be practicing medicine per se. To reach this determination, I will compare the education, training, scope of practice, services provided,
and efficacy of patient outcomes between these health care providers.
V. EDUCATION
A. Physician Education
MD education and clinical training is the most comprehensive
of any health care provider. 38 All MDs complete a college degree
including certain pre-requisite course work before attending an
accredited medical school. 3 9 Medical school is typically a four year
degree. 40 The first two years are spent in the "preclinical"
phase. 4 1 Students first study the normal structure and function of
the human system. 4 2 Students take courses in anatomy, physiology, biochemistry, neuroscience and behavioral science. 4 3 Students then focus on "abnormalities of the body's structure and
function, disease, and general therapeutic principles." 4 4 This lat34. See supratext accompanying note 17.
35. The supervising MD is responsible for all PA rendered medical services. R.I. GEN. LAWS § 5-54-2(10) (2004); see Theories of Liability, infra p.
32.
36. See supranotes 11, 14 and accompanying text.
37. Patients express a higher degree of satisfaction with NP primary care
over MD primary care. Baker, supra note 25, at 332.
38. Phylliss Coleman & Ronald A. Shellow, Extending Physician's Standard of Care to Non-physicianPrescribers:The Rx For ProtectingPatients,35
IDAHO L. REV. 37, 52 (1998).
39. McLean, supra note 18, at 257.
40. See MedicineNet.com, http://www.medterms.com/script/main/
art.asp?articlekey=30954 (last visited Jan. 7, 2009).
41. Id.
42. Id.
43. Id.
44. Id.
224 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
ter coursework includes microbiology, immunology, pharmacology
and pathology. 4 5 The second two years of medical school consists
of education in a clinical setting including rotations in such areas
as internal medicine, pediatrics, psychiatry, surgery, obste46
trics/gynecology and family medicine.
Following graduation from medical school, all MD candidates
are required to complete a one year supervised internship. 4 7 They
must also pass a series of national licensing examinations which
begin following their second year of medical school and conclude
following internship. 48 It takes approximately nine years to complete this training which qualifies the MD as a general practitioner. 49 In order for an MD to specialize in a particular field of medical practice, s/he must complete an additional residency program
of between two to six years and then take an additional board certification examination six months to two years after completing
the residency program. 50 Some applicants must pass both a written and an oral examination to achieve board certification in a
particular field. 5 1 Therefore, MDs usually have a minimum of
seven years of training post college education. In addition, they
are required to complete a certain amount of continuing medical
education and they must be recertified in their field of practice
52
every ten years.
B. Nurse Practitioner Education
All NPs are registered nurses (RNs) with additional education. 5 3 Education for RNs varies from completing a two year associate degree in nursing (ADN); a three year hospital administered
diploma program; or obtaining a four year Bachelor of Science degree in nursing (BSN). 5 4 Regardless of the degree obtained, all
nurses who pass a national licensing examination are equally des-
45. Id.
46. Id.
47.
McLean, supranote 18, at 257.
48.
Id. at 257-58.
49. Id.
50. Id.
51. Id. at 258.
52. Id. at 258-59.
53. BUPPERT, supra note 1, at 5.
54. ROTH-KAUFFMAN, supra note 1, at 12.
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PRACTICING WITHOUT A LICENSE
ignated as registered nurses (RNs). 5 5
Nursing is based on a holistic approach to deliver patient focused care. 5 6 Nursing education consists of both didactic and clinical components. 5 7 The first two years of a typical four year BSN
program consist of courses in human anatomy and physiology; microbiology; nutrition; chemistry; human growth and development;
and psychology. 58 The second two years typically focus on acute
and chronic disease; female reproductive health; pediatrics; psychiatric health; community health; nursing theory; bioethics;
health assessment; pharmacology; research and statistics; pathophysiology; and electives. 5 9 Supervised clinical practice generally
occurs during the last two years in hospitals, nursing homes and
60
the community.
State qualifications for NPs vary widely, from requiring as little as one additional year of academic training post RN licensure
to requiring a master's degree level of education with a clinical
component, certification by a national organization, continuing
education, and training in pharmacology. 6 1 NP programs generally include courses in advanced practice nursing philosophy, ad-
55. Id.
56. American Nurses Association, Nursing World- About Nursing,
http://www.nursingworld.org[MainMenuCategories/CertificaionandAccreditat
ionlAboutNursing (last visited Jan. 7, 2009). "What defines nursing and sets
it apart from other health care professions, particularly medicine with which
it has long been considered part and parcel? It is the nurses' focus - in theory
and practice - on the response of the individual and the family to actual or
potential health problems. Nurses are educated to be attuned to the whole
person, not just the unique presenting health problem. While a medical diagnosis of an illness may be fairly circumscribed, the human response to the
health problem may be much more fluid and variable and may have a great
effect on the individual's ability to overcome the initial medical problem. It is
often said that physicians cure, and nurses care. In what some describe as a
blend of physiology and psychology, nurses build on their understanding of
the disease and illness process to promote the restoration and maintenance of
health in their clients." Id.
57. ROTH-KAUFFMAN, supra note 1, at 12.
58. American Nurses Association, supra note 56; see, e.g., Illinois Wesleyan
School
of
Nursing
courses
and
descriptions,
http://www2.iwu.edu/nursing/curriculum (last visited Jan. 7, 2009).
59. See American Nurses Association, supra note 56.
60. See id.
61. BUPPERT, supra note 1, at 5. Approximately half of the states require
NPs to have a master's degree in nursing. Christian, supra note 1, at 1. Forty-two states require NPs to have national certification. Id.
226 ROGER WILLIMS UNIVERSITY LAWREVIEW [Vol. 14:215
vanced health assessment, diagnosis, advanced pathophysiology,
advanced pharmacology, primary care and clinical decision making.6 2 NPs may be certified in a variety of specialties including
family, pediatric, adult, geriatric, and women's care. 63
Presently, all NP applicants seeking initial licensure to practice in Rhode Island must possess a master's degree in nursing
from an accredited program and pass a national qualifying examination. 6 4 The Board of Nursing may grant prescriptive privileges
to NPs who have completed thirty hours of pharmacology education during the three years prior to application. 65 Once granted,
62. See The College of New Jersey School of Nursing, curriculum for
nurse practitioner programs, http://www.tcnj.edu/-nursing/progarms/
np-curriculum.html; St. Joseph's College family nurse practitioner curriculum, http://www.sjc.edu/content.cfm/pageid/5679.
63. BUPPERT, supra note 1, at 6.
64. R.I. GEN LAws § 5-34-35(a) (2004) provides in pertinent part as follows:
(1) The applicant is a registered nurse who has completed an accredited educational program resulting in a master's degree in nursing
and/or an approved nurse practitioner course of study. This curriculum must include both a didactic component and supervised clinical
experience. Effective January 1, 2004, all applicants for initial licensure must complete an accredited educational program resulting in a
master's degree with a major in nursing.
(2) The applicant passed a national qualifying examination recognized by the board of nurse registration and nursing education.
65. R.I. GEN. LAws § 5-34-39 (2008) provides as follows:
(a) Prescriptive privileges for the certified registered nurse practitioner:
Shall be granted under the governance and supervision of the
department, board of nurse registration and nursing education;
and
Shall include prescription of legend medications and prescription of controlled substances from schedules II, III, IV and V
that are established in regulation; and
Must not include controlled substances from Schedule I.
(b) To qualify for prescriptive privileges an applicant must submit on
forms provided by the board of nurse registration and nursing education, verified by oath, that the applicant has evidence of completion
of thirty (30) hours of education in pharmacology within the three (3)
year period immediately prior to date of application. To maintain
prescriptive privileges the certified registered nurse practitioner
(R.N.P.) must submit upon request of the board of nurse registration
and nursing education evidence of thirty (30) hours continuing education in pharmacology every six (6) years.
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PRACTICING WITHOUT A LICENSE
the NP can prescribe any controlled substance that an MD may
prescribe. 66
C. Physician Assistant Education
PA education is based on the medical model of primary care
and complements MD training. 67The majority of students have at
least a bachelor's degree and many have several years of prior
medical experience. 68A typical PA program is two years. 69 The
first year is didactic, including courses such as anatomy, physiology, pathophysiology, pathology, biochemistry, microbiology, pharmacology, physical diagnosis, laboratory science, behavioral medicine, ethics, and clinical medicine. 70 The second year is devoted to
supervised clinical rotations in physician's offices, hospitals and
clinics.71
PA students are "required to demonstrate proficiency in medical knowledge and meet behavioral and clinical objectives. ' 72 Accredited PA programs are required to meet educational standards
of the Accreditation Review Commission on Education for the
Physician Assistant Inc. (ARC-PA). 73 Every state requires PAs to
pass the Physician Assistant National Certifying Exam (PANCE)
in order to be licensed. 7 4 PAs maintain certification following
graduation by completing one hundred hours of continuing medical education every two years and passing a recertification examination every six years. 7 5 There are also several post-graduate
programs which offer additional training in such areas as orthopedics, oncology and cardiovascular surgery. 76
66. Id.; see Uniformed Controlled Substances Act, R.I. GEN. LAWS § 2128-1.01 et seq. (2002 & Supp. 2008).
67. ROTH-KAUFFMAN, supra note 1, at 4.
68. Id. at 5. ("It is common for emergency medical technicians, nurses
and paramedics to apply to PA programs").
69. Id. at 4.
70. Id.
71. Id. at 4-5.
72. Id. at 4.
73. Id.
74. Id. at 9.
75. Id. at 5.
76. ROTH-KAUFFMAN, supra note 1, at 4.
228 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
D. Comparing MD, NP and PA Education
Unquestionably, MDs undergo the most in depth scientific
and clinical educational experience of all health care practitioners.
Nurse practitioner education and training appears to be significantly less rigorous in terms of time, scientific education and clinical experience. Moreover, state licensing requirements for nurse
practitioners appear to be the most variable among the three
types of providers. While all MDs and PAs must achieve a particular degree status and pass national certifying examinations, all
NPs do not. 7 7 Additionally, MDs and PAs are trained under the
"medical model," whereas nurse practitioner education and training is based on the "nursing model."' 78 It appears that this may be
more of a difference in philosophy of practice rather than a difference in the professional services provided. An argument could be
made that the differences between the medical and nursing models of health care delivery are analogous to the differences between the allopathic and osteopathic models of health care delivery. Therefore, it is necessary to review these providers' scopes
of practice and services provided.
77.
Pearson, supra note 29, at 16-17. Since 2004, all applicants for initial
licensure as an NP in Rhode Island must have a master's degree in nursing
from an accredited program and must pass a national qualifying examination. R.I. GEN. LAWS § 5-34-35 (2004).
78. See supra note 56 and accompanying text; the term "medical model"
is not clearly defined. See also GORDON MARSHALL, A DICTIONARY OF
SOCIOLOGY, Oxford University Press (1998) ("More commonly, the term refers
to medicine's ideas and assumptions about the nature of illness, notably its
natural scientific framework and its focus on physical causes and physical
treatments. As such the term is frequently invoked in the context of ideological and political debates and inter-professional rivalries in which the relevance of this particular set of ideas is called into question. One problem with
the term is that it suggests a uniformity of medical ideas about causation and
treatment that does not fit the empirical diversity very well, since doctors do
not focus exclusively on physical factors, even in relation to physical illness.
For this reason some prefer the term 'bio-medical model', since it clearly indicates the focus on the biological, and allows that there are other medical
models. An alternative model of health and illness, employed by some doctors but especially favoured in nursing circles for its greater breadth, is a 'biopsycho-social model' encompassing the biological, psychological, and social
aspects.").
2009]
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VI. SCOPE OF PRACTICE
"Scope of practice" refers to a health care provider's legally
permissible boundaries of practice as defined by statute, regulation and educational requirements. 7 9 It is difficult to strictly define a health care provider's scope of practice because of the evolvpractices.8 0
nature of all professional
ing and dynamic
Nevertheless, it is important to define the scope of practice in a
way that protects the provider's professional status and comports
81
with the state's interest in public health and welfare.
A. Physician Scope of Practice
Generally, the scope of practice for all physicians is the practice of medicine. 82 The practice of medicine in Rhode Island in83
The
cludes the practice of allopathic or osteopathic medicine.
schedules
from
substances
controlled
prescribing
includes
practice
84
II through V of the Rhode Island Controlled Substances Act.
B. Nurse Practitioner Scope of Practice
NP scope of practice varies by state from requiring MD supervision to autonomous practice.8 5 NPs may prescribe controlled
substances in all fifty states to varying degrees. 8 6 All NPs who
79. Baker, supra note 25, at 338. "The Tenth Amendment to the United
States Constitution delegates the function of professional regulation to the
states pursuant to their police powers." See also Mary Beck, Improving
America's Health Care: Authorizing Independent Prescriptive Privileges for
Advanced PracticeNurses, 29 U.S.F.L. REV. 951, 952 (1994-1995).
80. Beck, supra note 79, at 972; see Baker, supra note 25, at 339.
81. See McLean, supra note 18, at 247-48; Beck, supra note 79, at 952.
The purpose of these powers is "to protect the health, safety and welfare" of
the general public and not the professions themselves. States regulate physicians and nurses through State Practice Acts. Id. The acts typically define
professional practice and licensure requirements, establish and delegate certain functions to a state regulatory board, and prohibit unauthorized practice
of the particular profession. Id.
82. Black's, supranote 15, at 1033 (physician defined).
83. R.I. GEN. LAWS § 5-37-1(13) (2006); see supra note 11 and accompanying text.
84. R.I. GEN. LAWS §§ 21-28-1.02 (37)(i) (2006), 21-28-3.03 (c) (2006).
85. Christian, supra note 1, at 1; see, e.g., BUPPERT, supra note 1, at App.
2-A (State-by-State Law Nurse Practitioner Scope of Practice) and App. 2-B
(State-by-State Requirement, if any, of Physician Collaboration).
86. NP prescribing varies from an MD delegated act, MD collaboration,
230 ROGER WILLIAMS UNIVERSITYLAWREVIEW [Vol. 14:215
prescribe controlled substances must register with the federal
government Drug Enforcement Administration (DEA).8 7 There is
little difference between MD and NP scopes of practice where both
include independent diagnosis, treatment, prescriptive authority
5
and hospital privileges.8
A Rhode Island NP's scope of practice is to use independent
knowledge to physically assess and manage health care and illness. 89 The practice "includes" prescriptive privileges and "collaboration" with other licensed health care professionals. 90 In order
to qualify for prescriptive privileges, the NP must provide evidence to the Board of Nursing that s/he completed certain pharmacology education requirements. 9 1 The NP may then prescribe
from schedules II through V of the Rhode Island Controlled Substances Act in the same manner as an MD. Independent prescriptive authority was enacted in 2008.92 Previously, NPs could only
prescribe "in accordance with annually updated guidelines, written in collaboration with the medical director or physician consul93
tant of their individual establishments."
C. Physician Assistant Scope of Practice
The PA's scope of practice is to provide MD supervised services that are legally authorized by the state in which s/he practices. 94 In Rhode Island, the PA's scope of practice is to provide patient services, within his/her level of education and experience,
"under the supervision, control, responsibility and direction of a
licensed physician." 95 PAs may only provide services that are
within the supervising MD's field of medical expertise. 96 They
to independent prescriptive privileges. BUPPERT, supra note 1, at 183.
87. BUPPERT, supra note 1, at 186; Beck, supra note 79, at 983. (NPs have
been able to get their own DEA numbers since 1993 whether they prescribe
dependently or independently).
88. BUPPERT, supra note 1, at 43.
89. See R.I. GEN. LAws § 5-34-3(3) (2004).
90. Id.; see supra note 15 and accompanying text for definitions of "collaboration" and "include."
91. R.I. GEN. LAws § 5-34-39(c) (2004).
92. See R.I. GEN. LAws § 5-34-39 (Supp. 2008).
93. R.I. GEN. LAws § 5-34-39(b) (2004).
94. ROTH-KAUFFMAN, supra note 1, at 29-30.
95. R.I. GEN. LAws §§ 5-54-2(9) (2004), 5-54-8(b) (Supp. 2008).
96. R.I. GEN. LAws § 5-54-2(10) (2004).
PRACTICING WITHOUT A LICENSE
2009]
may prescribe controlled substances and medical devices as delegated by the supervising MD. At least one commentator argues
that PAs merely have a "job description" and not a "scope of prac97
tice" because they do not practice independently.
D. Comparing MD, NP and PA Scopes of Practice in Rhode Island
The most significant difference between MD, NP and PA
scopes of practice in Rhode Island is that MDs and NPs may practice "autonomously," whereas a PA always practices under MD
supervision and control. What differentiates MD and NP scopes of
practice appears to be differences in their professional licensing
98
requirements which are based on their education and training.
Accordingly, MD and NP differences in education and training define different scopes of practice.
VII. PROFESSIONAL SERVICES
Professional services are services rendered by a member of a
profession within the purview of that profession. 9 9 The term "professional services" is defined in the Rhode Island General Laws
Professional Service Corporations chapter as "personal services by
a person authorized to practice" in a particular profession. 10 0
MDs, NPs, and PAs are all included as persons who render professional services.1 0 1 This definition of "professional services," how-
97.
BuPPERT, supranote 1, at 10.
98. See R.I. GEN. LAWS §§ 5-34-2, 5-34-3, 5-34-35, 5-34-36, 5-34-39, 5-37-1,
5-37-2 (2004).
99. See http:/Jlawdigest.uslegal.com/corporations/attorneys/4634/
(last
visited Jan. 7, 2009).
100. R.I. GEN. LAws § 7-5.1-2 (1999 & Supp. 2008), which provides in pertinent part as follows:
"As used in this chapter:
(1) 'Professional services' means the rendering of personal services by a person authorized to practice as one of the following
professions as defined:
(i) Physicians;
(xi) Registered nurses;
(xvii) Physician assistants."
101.
Id.
232 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
ever, is specific to the Professional Service Corporations chapter. 10 2 In Vigue v. John E. Fogarty Memorial Hosp., the Rhode
Island Supreme Court specifically refused to, extend this definition
of professional services to malpractice actions brought against
hospitals. 103 The term "professional services" is used, but not oth04
erwise defined elsewhere in the Rhode Island General Laws. 1
A. MD, NP and PA Professional Services
The descriptions of MD, NP and PA primary care professional
services sound very much alike. The U.S. Department of Labor,
Bureau of Labor Statistics states that MDs:
"diagnose illnesses and prescribe and administer treatment
for people suffering from an injury or disease. Physicians examine
patients, obtain medical histories, and order, perform and interpret diagnostic tests. They counsel patients on diet, hygiene, and
05
preventive health care."'
NP primary care services include diagnosing and treating
102. Id.
103. 481 A.2d 1, 5 (R.I. 1984). In Vigue, the Rhode Island Supreme Court
addressed the issue of whether a hospital renders professional services and is
therefore subject to the two year statute of limitations for professional malpractice rather than the three year statute for simple negligence. Id. at 2-3.
A divided Court recognized an inconsistency in two sections of the Rhode Island General Laws. Id. at 4. The definition of "malpractice" pursuant to title
5, section 37.1-1(f) of the Rhode Island General Laws, included any tort based
on "professional services" rendered by a "hospital," but title 7, section 5.1-2,
did not recognize "hospital" as a "person" authorized to practice professional
services. Id. at 3.
The majority reasoned that title 7, section 5.1-2 of the Rhode Island General
Laws related to "individuals" and not to "health-service organizations" subject to the definition of malpractice pursuant to title 5, section 37-1. Id. at 4.
The Court explained that to accept the proposition that only individuals can
render professional services would nullify the term "hospital" under the statutory definition of malpractice. Id. The Court had previously held that inconsistent statutory provisions which are in pari materia "'must be given
meaning and effect and all made operative if it be reasonably possible***."
Id. (quoting Nascimento v. Phillips Petroleum Co., 346 A.2d 657, 659 (1975)).
Moreover, the "professional services" definition in § 7-5.1-2, applied only to
chapter 5.1 by its express terms. Id. at 5. The Court held that the two year
medical malpractice statute of limitations applied. Id.
104. See, e.g., R.I. GEN. LAWS §§ 5-37-1, 5-37-5.1, 5-37-9, 5-54-2, 5-54-23
(2004).
105. U.S. DEPT. LAB., BUREAu LAB. STATISTICS, Occupational Outlook
Handbook, http://www.bls.gov/oco/ocos074.htm (last visited Jan. 7, 2009).
PRACTICING WITHOUT A LICENSE
2009]
233
health problems. 106 They do this by obtaining medical histories;
ordering and interpreting diagnostic tests and x-rays; prescribing
medication and other treatments; and providing education and
case management. 107
08
PAs practice medicine under the supervision of an MD.'
They obtain patient histories; perform comprehensive examinations; diagnosis; order and interpret diagnostic tests and x-rays;
prescribe medication and other treatments; and provide education
and treatment plans. 109
From a legal viewpoint, PA services differ from MD and NP
services because PA services are delegated acts.1 1 0 Only MDs and
NPs may use independent judgment when rendering professional
services.1 1 1 Moreover, the scope of professional services rendered
by each of these providers is limited by their education and training.
MD supporters contend that because MDs have significantly
more education and training, it is naive to conclude that primary
care rendered by the average MD is the same as primary care
rendered by the average NP." 2 Furthermore, they argue that
lack of a comprehensive medical background will cause NPs to
misdiagnose atypical cases. 11 3 They suggest that the nonphysician health care provider does not have enough knowledge to
recognize what s/he does not know.11 4 These arguments, however,
concern the quality of care and not the care itself.
Efficacy outcome studies demonstrate that NP primary care
115
treatment is equal to or better than treatment provided MDs.
106.
107.
108.
109.
BUPPERT, supra note 1, at 3.
Id.
ROTH-KAUFFMAN, supra note 1, at 2.
Id. at 2-3.
110. Id. at 2.
111. Pearson, supra note 29, at 18, 21. In thirteen states NPs need no MD
involvement in diagnosis, treatment or prescribing. Id.
112. Mc Lean, supra note 18, at 260. If MDs and NPs provided the same
quality of care there would be no reason to provide health care education past
the master's degree level and no incentive to invest additional time and money in obtaining a doctorate level degree. Id.
113. Coleman, supra note 38, at 50; see also BUPPERT, supra note 1, at 23840 (cases where NP sued for missed diagnosis).
114. Coleman, supra note 38, at 50.
115. Sharon A. Brown & Deanna E. Grimes, A Meta-analysis of Nurse
Practitionersand Nurse Midwives in Primary Care, 44 NURSING RES. 332, 337
234 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
Studies also demonstrate that NPs prescribe controlled substances
safely and reliably. 116 They conclude that NPs can provide fifty to
1 17
ninety percent of all primary care.
Sources contend that NP services are indistinguishable from
MD services in a primary care setting. 11 8 The only difference in
care is the model of care delivery. 119 Columbia Advanced Practice
Nurse Associates (CAPNA), a New York based independent NP
practice, advertises that they "can do anything that a primary
care physician can do."' 120 NPs argue that they render many of
the same services as their MD counterparts and, therefore, should
be reimbursed for those services at the same rate. 121
Courts have acknowledged that NPs and MDs perform over-
lapping functions.
122
The medical services that MDs and NPs
(1995); Richard A. Cooper, Quality Among a Diversity of Health Care Providers, 185 MED. J. AUSTL. 2, 3 (2006); Hooker, supra note 33, at 5; Roderick
Hooker, A Cost Analysis of PhysicianAssistants in Primary Care, 11 JAAPA
39 (2002); Sue Horrocks, Elizabeth Anderson & Chris Salisbury, Systemic
Review of Whether Nurse PractitionersWorking in Primary Care Can Provide
Equivalent Care to Doctors, 324 BRIT. MED. J. 819, 821 (2002); Mary 0. Mundinger et al., Primary Care Outcomes in Patients Treated by Nurse Practitioner or Physicians, 283 JAMA 59, 68 (2000); Barbara J. Safriet, Health Care
Dollars and Regulatory Sense: The Role of Advanced Practice Nursing, 9
YALE J. ON REG. 417, 431 (1992); cf. Hooker, supra note 33, at 5 (PAs can provide eighty percent or more of services provided by MDs at same level of quality).
116. Beck, supra note 79, at 957.
117. Baker, supra note 25, at 331; see Beck, supra note 79, at 957.
118. Baker, supra note 25, at 328.
119. Id. at 341.
120. Lyndia Flanagan, Nurse Practitioners:Growing Competitionfor Family Physicians?,5 FAM.PRAC. MGMT. 34, 34 (1998). CAPNA NPs have hospital
admitting privileges, are listed as providers in managed care organizations,
are reimbursed at the same rate as physicians and are in direct competition
with physicians. Id. at 35. NPs advocate that they should be considered the
final authority on primary care and in other areas where they have specialized knowledge, education and expertise. BUPPERT, supra note 1, at 476-77.
121. See National Association of Pediatric Nurse Practitioners Position
Statement on Reimbursement for Nurse Practitioner Services, 18 J. OF
PEDIATRIC HEALTH CARE A27, A27 (2004).
122. See Tucker v. Talley, 600 S.E.2d 778, 782 (Ga. Ct. App. 2004) (NP
cannot testify to physician standard of care where actions do not overlap);
Planned Parenthood of Northwest Indiana, Inc. v. Vines, 543 N.E.2d 654, 660
(Ind.Ct. App. 1989) (physician can testify to NP standard of care for overlapping procedure where standard of care was the same); cf. In re Stacy K.
Boone, 223 S.W.3d 398, 407 (Tex. App. 2006) (physician can testify to PA
standard of care when performing overlapping functions and held to same
2009]
PRACTICING WITHOUT A LICENSE
235
render in co-extensive areas of practice are essentially the
same. 123 In those cases, NPs and MDs are held to the same standard of care.124 The area of professional overlap is called the "interprofessional intersection."1 2 5 Therefore, it would not be unreasonable for the court to find that NPs are practicing medicine
when they are performing overlapping functions independently.
B. MD, NP and PA Services in Rhode Island
1. Licensing and Regulation
The Board of Medical Licensure and Discipline regulates the
practice of medicine in Rhode Island.1 2 6 To obtain a license to
practice allopathic or osteopathic medicine, an MD must present
evidence to the board that s/he has graduated from a qualified
medical school, completed post graduate training requirements
and passed any examination that the board requires.' 2 7 All listandard of care).
123.
Baker, supra note 25, at 341.
124. Buppert, supra note 1, at 237.
125.
126.
127.
lows:
Baker, supra note 25, at 341.
See generally R.I. GEN. LAWS §§ 5-37-1 - 32 (2004).
R.I. GEN. LAws § 5-37-2 (2008 Supp.) provides in pertinent part as fol-
"(a) Authority to practice allopathic or osteopathic medicine under
this chapter shall be by a license issued by the director of the department of health to any reputable physician who intends to practice allopathic or osteopathic medicine in this state, and who meets
the requirements for licensure established in this chapter and regu-
lations established by the board or by the director. Applicants for licensure shall present satisfactory evidence of graduation from a
medical school or school of osteopathic medicine approved by the
board and in good standing, shall meet post graduate training requirements and any other requirements that the board or director
establishes by regulation, and shall pass in a satisfactory manner
any examination that the board may require [...]
(2)A license to practice allopathic medicine shall be issued to
persons who have graduated from a school of medicine, possess a
degree of doctor of medicine (or meet the requirements of subsection (b) of this section), and meet the requirements for licensure.
(3) A license to practice osteopathic medicine shall be issued
to persons who have graduated from a school of osteopathic medicine and possess a degree of doctor of osteopathy and otherwise
meet the requirements for licensure. A license to practice osteo-
236 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
censed MDs must register biannually with the board. 12 8 They
must also earn a minimum of forty hours of AMA category 1/AOA
category la continuing medical education hours every two
years. 129
The Board of Nurse Registration and Nursing Education regulates the practice of nursing in Rhode Island. 130 In order to be
licensed as a certified registered nurse practitioner (R.N.P.), the
applicant must be licensed (in Rhode Island) as an R.N., complete
a master's degree in nursing from an accredited educational program and pass a national qualifying examination. 13 1 R.N.P.s
must renew their licenses yearly and complete ten hours of continuing nursing education every two years. 13 2 They must also
complete additional training to qualify for prescriptive privileges.
13 3
The Board of Licensure of Physician Assistants regulates PA
practice in Rhode Island. 134 PAs licensed in Rhode Island must be
of "good moral character," have graduated from an approved PA
pathic medicine shall confer upon the holder the right to practice
osteopathic medicine in all its branches as taught and practiced
in accredited colleges of osteopathic medicine. The holder of that
license shall be subject to the same duties and liabilities and entitled to the same rights and privileges, which may be imposed
by law or governmental regulation, upon physicians of any
school of medicine."
The board requires the applicant to be of "good moral character" and to have
completed two years of post graduate training. R.I. Dep't of Health, Rules
and Regulations for the Licensure and Discipline of Physicians, Rule 3.1.1
at
2007),
available
(October
http://www2.sec.state.ri.us/dar/regdocs/released/pdfBMLD/4906.pdf.
128. R.I. GEN. LAWS § 5-37-10 (2008 Supp.).
129. Rules and Regulations for the Licensure and Discipline of Physicians,
supra note 127, Rule 6.1.
130. See generally R.I. GEN. LAWS. §§ 5-34-1 to -35 (2004).
131. R.I. GEN. LAWS § 5-34-35; R.I. Dep't of Health, Rules and Regulations
for the Licensing of Nurses and the Standardsfor the Approval of Basic Nursing Education Programs, 14-140-022-4 R.I. CODE R. §3.2 (2008). The board also requires applicants to be of "good moral character." Id.; see also Nurse
Practitioner Education, supra p. 10.
132. See R.I. Dep't of Health, Rules and Regulations for the Licensing of
Nurses and the Standards for the Approval of Basic Nursing Education Programs, 14-140-022-7 R.I. CODER. §§ 6.0, 8.0.
133. See Nurse Practitioner Education, suprap. 10. NPs with prescriptive
privileges must complete thirty hours of continuing education in pharmacology every six years. R.I. GEN. LAWS §5-34-39(c) (2004).
134. See R.I. GEN. LAws §5-54-1 (1956).
20091
PRACTICING WITHOUT A LICENSE
training program and have completed a national certifying examination.135 PAs must renew their licenses biannually and must
36
complete ten hours of approved medical education annually. 1
2. Comparing MD, NP and PA Services in Rhode Island
Primary care MDs, NPs and PAs render many of the same
services in Rhode Island. There appear to be two main differences
between the services rendered by MDs, NPs and PAs. One difference appears to be a matter of semantics: how the services are described versus what service is actually performed. The other difference is whether the services are rendered independently, in
collaboration or under supervision and control of a licensed MD.
In Rhode Island, MDs practice medicine. R.N.P.s "utiliz[e]
independent knowledge of physical assessment and management
of health care and illnesses."'137 PAs perform MD delegated
health care services consistent with their expertise and that of
their supervising physician. 138
While the descriptions do not
135. R.I. GEN. LAWS § 5-54-9 (Supp. 2008), provides in pertinent part as
follows:
"The board shall recommend to the director for licensure as a physician assistant an applicant who:
(1) Is of good character and reputation;
(2) Graduated from a physician assistant training program certified by the AMA's Committee on Allied Health, Education, and
Accreditation, its successor, the Commission on Accreditation of
Allied Health Education Programs (CAAHEP) or its successor.
(3) Passed a certifying examination approved by the National
Commission on Certification of Physician Assistants or any other national certifying exam approved by the board.
136. R.I. GEN. LAWS §§ 5-54-11, 5-54-12.1 (2004).
137. R.I. GEN. LAWS § 5-34-3(3) (2004).
138. R.I. GEN. LAws § 5-54-8 (Supp. 2008), provides in pertinent part as
follows:
"(a) Physician assistants shall practice with physician supervision
and shall be considered the agents of their supervising physicians in
the performance of all practice-related activities. Whenever any provision of general or public law, or regulation, requires a signature,
certification, stamp, verification, affidavit or endorsement by a physician, it shall be deemed to include a signature, certification, stamp,
verification, affidavit or endorsement by a physician assistant; provided, however, that nothing in this section shall be construed to expand the scope of practice of physician assistants. Physician assistants may perform those duties and responsibilities consistent with
238 ROGER WILLIAMS UNIVERSITYLAWREVIEW [Vol. 14:215
clearly explain the differences between the services performed,
they certainly allow for overlap in functions. Additional evidence
that NPs and PAs perform overlapping services with MDs is the
fact that they bill insurance companies for their services using the
13 9
same billing codes as MDs when performing the same services.
Medicare reimburses NPs and PAs at the rate of 85% of what they
pay MDs for the same services. 140 When the NP or PA is employed by an MD, however, they may be reimbursed at 100% of
the MD charge if they can show that the services were "incident to
the limitations of this section, including prescribing of drugs and
medical devices, which are delegated by their supervising physician(s). Physician assistants may request, receive, sign for and distribute professional samples of drugs and medical devices to patients
only within the limitations of this section. Notwithstanding any other provisions of law, a physician assistant may perform health care
services when those services are rendered under the supervision of a
licensed physician.
(b) Physician assistants, depending upon their level of professional
training and experience, as determined by a supervising physician,
may perform health care services consistent with their expertise and
that of the supervising physician, who is a licensed physician in solo
practice, in group practice, or in health care facilities.
(c) Physician assistants may write prescriptions and medical orders
to the extent provided in this paragraph. When employed by or extended medical staff privileges by a licensed hospital or other licensed health care facility a physician assistant may write medical
orders for inpatients as delineated by the medical staff bylaws of the
facility as well as its credentialing process and applicable governing
authority. Physician assistants employed directly by physicians,
health maintenance organizations or other health care delivery organizations may prescribe legend medications including schedule II,
III, IV and V medications under chapter 28 of title 21 of the Rhode
Island Uniform Controlled Substances Act, medical therapies, medical devices and medical diagnostics according to guidelines established by the employing physician, health maintenance organization
or other health care delivery organization.
(d) When supervised by a physician licensed under chapter 29 of this
title, the service rendered by the physician assistant shall be limited
to the foot. The "foot" is defined as the pedal extremity of the human
body and its articulations, and includes the tendons and muscles of
the lower leg only as they are involved in conditions of the foot."
139. . See e.g. BLUE CROSS BLUE SHIELD OF RHODE ISLAND, MEDICAL
COVERAGE
POLICIES:
MID-LEVEL
PRACTITIONER
(2008),
https://www.bcbsri.com/BCBSRIWeb/plansandservices/services/medicalpolici
es/MidLevel Practitioner.jsp.
140. BUPPERT, supranote 1, at 270; ROTH-KAUFFMAN, supra note 1, at 510.
20091
PRACTICING WITHOUT A LICENSE
239
a physician's professional services." 1 41
The main factor that distinguishes PA services from MD and
NP services is that PAs always perform under the supervision and
control of an MD. PA services are viewed as MD delegated acts.
For this reason, one can argue that it is the MD and not the PA
who is practicing medicine.
NP practice involves using independent knowledge in rendering services. NPs use their knowledge of physical assessment to
manage health care and illness. This description of R.N.P. practice
is so broad that their ability to independently diagnose and treat
patients is limited only by the scope of their knowledge. Although
the definition of R.N.P. "includes collaboration" with other licensed health care professionals, collaboration is not "required."' 142 The plain and ordinary interpretation of this language
is that NPs are "authorized" to collaborate with other health care
professionals, but collaboration is not "mandated." Thus, it appears that R.N.P.s may provide the same services as MDs if those
services are within the scope of their education, training and
knowledge. Because the average NP's education, training and
knowledge is generally less than that of the average MD, their
scope of practice is more limited than the average MD's scope of
practice. This does not mean that NPs are not practicing medicine, however, it merely goes to the range of their practice. Similarly, MDs with board certification in a particular specialty perform services that a general practitioner cannot.
VIII. STANDARD OF CARE
A. Negligence
In any negligence action, including medical malpractice, the
plaintiff has the burden to establish that the defendant had a duty
to act or to refrain from acting; the defendant breached that duty;
the plaintiff sustained an injury; and the breach of duty caused
the plaintiffs injury. 143The defendant is held to a "standard of
141. BUPPERT, supra note 1, at 271. "[Ilncident to" services are rendered
under an MD's "direct personal supervision." Id. See also ROTH-KAUFFMAN,
supra note 1, at 513-14.
142. See What is a Nurse Practitioner?, supra p. 3.
143. Perry v. Alessi, 890 A.2d 463, 467 (R.I. 2006); see generally, Baker,
240 ROGER WILLIAMS UNIVERSITYLAWREVIEW [Vol. 14:215
care" which is "that degree of care which a reasonably prudent
person should exercise under the same or similar circumstances." 14 4 The plaintiff must establish the standard of care and
prove that the defendant breached that standard by a preponder45
ance of the evidence. 1
B. Malpractice
In medical malpractice actions the traditional physician standard of care is the "average degree of skill, care, and diligence exercised by members of the same profession, practicing in the same
or a similar locality, in light of the present state of medical and
surgical science." 1 46 Many jurisdictions have now abandoned the
so called "similar locality" rule in favor of a national standard of
care. 14 7 Rhode Island subscribes to the national standard. 148
C. Rhode Island Standard of Care
Presently, the standard of care for a Rhode Island MD is
"to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or
' 14 9
she belongs, acting in the same or similar circumstances."
Rhode Island applies a comparable standard of care to nonphysician health care professionals: 'to establish the degree of
'care, skill and diligence' used by similarly situated health care
providers in the same general line of practice." ' 150 Expert testi-
supra note 23, at 343 (malpractice action is the same as a negligence action
plus a standard of care beyond a reasonable person standard).
144. Black's, at 1260.
145. Riley v. Stone, 900 A.2d 1087, 1095 (R.I. 2006).
146. Gillette v. Tucker, 65 N.E. 865, 865 (1902).
147. Sheeley v. Memorial Hosp., 710 A.2d 161, 166 (R.I. 1998).
148. Id. at 167.
149. Id. In Rhode Island, medical malpractice is "any tort, or breach of
contract based on health care or professional services rendered, or which
should have been rendered, by a physician, dentist, hospital, clinic, health
maintenance organization or professional service corporation providing
health care services and organized under chapter 5.1 of title 7, to a patient or
the rendering of medically unnecessary services except at the informed request of the patient." R. I. GEN. LAws § 5-37-1(8) (2004).
150. Boccasile v. Cajun Music Ltd., 694 A.2d 686, 690 (R.I. 1997) (quoting
Leonard v. Providence Hosp., 590 So. 2d 906, 908 (Ala. 1991) (standard of
care applied to nurse)); see also Fraijo v. Hartland Hosp., 160 Cal. Rptr. 246
(1979) (RN held to RN standard of care); Hiatt v. Groce, 523 P.2d 320 (Kan.
PRACTICING WITHOUT A LICENSE
20091
mony is required to establish the standard of care and to prove a
deviation from it. 151 The expert's opinions must rise to the level of
a reasonable degree of medical certainty. 15 2 This means that the
testimony must "express some degree of positiveness or probability."
15 3
Admission of expert testimony is generally within the sound
discretion of the trial judge. 154 The Court will not disturb the trial judge's determination absent clear error or abuse of discretion. 15 5 In 1986, the Rhode Island legislature enacted legislation
concerning expert witnesses in malpractice cases, "purporting to
curtail" this discretion. 15 6 Rhode Island General Laws § 9-19-41
provides as follows: "In any legal action based upon a cause of action arising on or after January 1, 1987, for personal injury or
wrongful death filed against a licensed physician, hospital, clinic,
health maintenance organization, professional service corporation
providing health care services, dentists, or dental hygienist based
on professional negligence, only those persons who by knowledge,
skill, experience, training, or education qualify as experts in the
field of the alleged malpractice shall be permitted to give expert
15 7
testimony as to the alleged malpractice."
The Court noted that § 9-19-41 does not require the expert to
practice the same specialty as the defendant in order to testify
about the proper standard of care. 15 8 In determining who is qualified to testify regarding the proper standard of care in a malprac-
1974) (NP standard of care is established by other NPs in the same or similar
communities under like circumstances); Whitney v. Day, 300 N.W.2d 380
(Mich. 1981) (nurse anesthetist standard of care is the same as that of other
nurse anesthetists practicing in the same community); Paris v. Kreitz, 331
S.E.2d 234 (N.C. 1985) (PA not held to MD standard of care; health care provider standard of care based on standard for members of same profession
with similar training and experience in the same or similar community);
Gaines v. Comanche County Med. Hosp., 143 P.3d 203 (Okla. 2006) (RN can
testify to standard of care of RN for prevention, cause and treatment of bed-
sores).
151.
Id.
152. Riley, 900 A.2d at 1092.
153. Id.
154. Sheeley, 710 A.2d at 164.
155. Id.
156. Debar v. Women and Infants Hosp., 762 A.2d 1182, 1186 (R.I. 2000).
157. R.I. GEN. LAws § 9-19-41 (1997).
158. 762 A.2d at 1186.
242 ROGER WILLIAMS UNIVERSITYLAWREVIEW
[Vol. 14:215
tice action, the Court stated in Sheeley v. Rhode Island Hospital,
that: "Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or
education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from
159
that standard."
Accordingly, the Sheeley Court held that a board certified obstetrician/gynecologist was qualified to testify as an expert regarding the appropriate standard of care of a second-year family practice resident who performed an episiotomy on a woman during
childbirth. 160 The Court noted that the standard of care in performing the procedure at issue had remained constant for over
thirty years. 161
The Court issued the following decisions which are consistent
with Sheeley. In Buja v. Morningstar,the Court allowed an obstetrician to testify in a malpractice action against a family practitioner whose patient gave birth to an infant with severe birth defects cause by oxygen deprivation during the birthing process. 162
The Court held in Marshall v. Medical Associates of Rhode Island
that a pediatric and family physician could testify about the standard of care in treating an animal wound bite in a malpractice action against an emergency room doctor and internist. 16 3 In Debar
v. Women and Infants Hospital, the Court held that the trial court
erred in excluding a pediatric neurologist's testimony about obstetrical data in an action against a hospital and several of its obstetric/gynecology physicians. 164
The Court relied on Rule 702 of the Rhode Island Rules of
Evidence in Gallucci v. Humbyrd in determining that a board certified orthopedic surgeon was qualified to give an opinion regarding rehabilitative therapy performed by a physical therapist. 1 65
Rule 702 supports the notion that an expert does not need the exact same credentials as a malpractice defendant in order to proffer
159.
710 A.2d at 166.
160. Id. at 167. An episiotomy is a procedure where the mother's perineum is cut during childbirth to prevent tearing. Id. at 163.
161. Id. at 167.
162. 688 A.2d 817, 818-19 (R.I. 1997).
163. Marshall v. Med. Assoc. of R.I., Inc., 677 A.2d 425, 426-27 (R.I. 1996).
164. 762 A.2d 1182, 1189 (R.I. 2000
165. 709 A.2d 1059, 1064-65 (R.I. 1998).
2009]
PRACTICING WITHOUT A LICENSE
243
opinion testimony. 16 6 Rule 702 provides as follows:
"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of
fact or opinion."
In addition to allowing expert testimony from witnesses who
do not have the same credentials as the defendant, Sheeley acknowledged that "the focus in any medical malpractice case should
be the procedureperformed and the question of whether it was executed in conformity with the recognized standard of care, the
primary concern being whether the treatment was administered
67
in a reasonable manner." (emphasis added)i
Consistent with focusing on the procedure performed, in Vigue v. John E. FogartyMemorial Hospital,the Court stated that it
is the service itself and not the title of the person performing the
service which determines whether professional services were renThus, it appears that where different professionals
dered. 1 68
render the same professional services, the Court may be inclined
to hold them to the same standard of care regardless of their
titles.
D. Foreign Jurisdictions' Standard of Care
Foreign jurisdictions have ruled that an expert's knowledge
rather than title determine whether s/he can testify in a medical
malpractice case. 16 9 Some courts have allowed MDs to testify regarding non-physician providers' standard of care. 1 70 Courts have
166. 762 A.2d at 1186.
167. 710 A.2d at 166.
168. 481 A.2d 1, 3 (R.I. 1984); see supra note 103 and accompanying text.
169. See Marshall v. Hartford Hosp., 783 A.2d 1085, 1097 (Conn. App. Ct.
2001) (witness' knowledge rather than title determine whether s/he can testify as expert in medical malpractice action); Staccato v. Valley Hosp., 170 P.3d
503, 507-08 (Nev. 2007) (medical expert does not need same credentials as
care provider to testify to standard of care for procedure or treatment where
witness' experience, education and training establish expertise to perform
procedure or treatment); Creasey v. Hogan, 637 P.2d 114, 120 (Or. 1981)
(where principles, techniques and methods of practice are the same, practitioner from one discipline may testify in case against practitioner from
another discipline).
170. See Cooper v. Eagle River Memorial Hosp., Inc., 270 F.3d 456, 463
244 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
also allowed non-physician providers to testify against MDs and
other non-physician providers. 17 1 Finally, courts allow health
(7th Cir. 2001) (physician can testify to NP standard of care); Dukes v. Georgia, 428 F. Supp.2d 1298, 1311-13 (N.D. Ga. 2006) (physician who has taught
or supervised other health care professionals can testify to their standard of
care in malpractice action); Planned Parenthood of Northwest Indiana, Inc. v.
Vines, 543 N.E.2d 654, 660 (Ind. Ct. App. 1989) (physician can testify to NP
standard of care for overlapping procedure where standard of care was the
same); Creasey, 637 P.2d at 120 (physician could testify to standard of care of
podiatrist); Montgomery v. S. Philadelphia Med. Group, Inc., 656 A.2d 1385,
1389 (Pa. 1995) (physician can testify to standard of care in treating breast
cancer where claimant treated with PA working for PCP); In re Stacy K.
Boone, 223 S.W.3d 398, 407 (Tex. App. 2006) (physician can testify to PA
standard of care when performing overlapping functions and held to same
standard of care); Parker v. Haller, 751 P.2d 372, 376 (Wyo. 1988) (physician
can testify to PA standard of care); see also McElhaney v. Harper-Hutzel
Hosp., 711 N.W.2d 795, 799-800 (Mich. Ct. App. 2006) (physician opinion sufficient for affidavit of merit against midwife, but not sufficient at trial); cf.
Dukes, 428 F. Supp. at 1311-13 (physician who has taught or supervised other health care professionals can testify to their standard of care in malpractice action pursuant to O.C.G.A § 24-9-67); but see Simonson v. Keppard, 225
S.W.3d 868, 874-75, 889 (Tex. App. 2007) (NP held to NP standard of care;
physician cannot testify to NP standard of care unless familiar with it, but
see O'Neill, J., dissenting, arguing that NP and physician should be held to
same standard of care when performing a "medical act" of diagnosing or
treating a condition).
171. See Nowak v. High, 433 S.E.2d 602, 603-05 (Ga. Ct. App. 1993) (RN
could testify to standard of care of doctor to give injection); Harris v. Miller,
438 S.E.2d 731, 742 (N.C. 1994) (trial court erred in failing to allow CRNA to
testify that surgeon had negligently supervised CRNA who assisted in surgery where prospective witness was a CRNA for 15 years and was qualified to
discuss the level of supervision surgeons should be giving to a CRNA in an
emergency situation); Tabatha N.S. v. Zimmerman, 2008 Ohio 1639, 23-31
(Ohio Ct. App. 2008) (NP competent expert to testify about standard of care
of obstetrical nurses in respondeat superior action against hospital); see also
Sturgis Bank & Trust Co. v. Hillsdale Cmty. Health Ctr., 708 N.W.2d 453,
456 (Mich. Ct. App. 2005) (NP affidavit of merit sufficient in medical malpractice case against hospital and staff, but may not be used to prove proximate cause at trial); but cf. Tucker v. Talley, 600 S.E.2d 778, 782 (Ga. Ct.
App. 2004) (NP cannot testify to physician standard of care where actions do
not overlap); contra Rudy v. Meshorer, 706 P.2d 1234, 1237 (Ariz. Ct. App.
1985) (psychiatric RPN could not testify regarding psychiatrist negligence in
failing to determine that patient was suicidal); Nead v. Brown County Gen.
Hosp., 2007-Ohio-2443, 42-56 (Ohio Ct. App. 2007) (only physician can testify
as expert against physician in medical malpractice case, but they may be different specialties); Bradford v. Alexander, 886 S.W.2d 394, 397 (Tex. App.
1994) (PA cannot testify to physician standard of care); Boice v. Marble, 982
P.2d 565, 571 (Utah 1999) (APRN could not testify in medical malpractice
case against physiatrist to standard of care of post-operative care of spinal
2009]
PRACTICING WITHOUT A LICENSE
care professionals from different disciplines to testify against each
other regarding overlapping functions. 17 2 In all cases, counsel
must lay foundation to establish that the expert witness knows
what the appropriate standard of care is for the defendant-health
173
care professional.
Jurisdictions vary on whether to hold non-physician health
care providers to the same standard of care as an MD where overlapping services are provided. 1 74 In Louisiana, an RN may be
held to the same standard of care and liability as an MD when
performing medical services. 175 The Texas Court of Appeals, allowed an MD to testify that the standard of care for post-operative
anti-coagulation therapy following hernia surgery, is the same for
17 6
a PA and an MD.
In Simonson v. Keppard, a malpractice action against an NP
who failed to diagnose an intracranial hemorrhage, however, the
Texas Court of Appeals, in a majority opinion, refused to allow an
MD to testify regarding standard of care where there was no testimony that the expert had knowledge of the NP standard of
care. 177 The dissent argued that by allowing NPs to perform medical diagnoses and treatment under proper delegation of a supervising MD, the Texas Medical Practice Act effectively incorporated
178
the MD standard of care.
In Fein v. Permanente Medical Group, the Supreme Court of
California held that a trial court erred in instructing a jury that
injury patients, where APRN failed to provide foundation that the standard
of care was the same for a rehabilitation nurse or physiatrist).
172. See Nowak, 433 S.E.2d at 604-05; Planned Parenthood v. Vines, 543
N.E.2d at 660; Hypolite v. Columbia Dauterive Hosp., 968 So.2d 239, 243 (La.
Ct. App. 2007) (nurses performing medical services are subject to the same
standard of care and liability as MD); Staccato, 170 P.3d at 507 (MD can testify to nurse standard of care to administer intramuscular injection where
both MD and nurse are qualified to perform procedure); Creasey, 637 P.2d
114 (where principles, techniques and methods of practice are the same, practitioner from one discipline may testify in case against practitioner from
another discipline); cf. Simonson, 225 S.W.3d at 874-75; In re Stacy K Boone,
223 S.W.3d at 407.
173. See cases cited supra notes 169-171.
174. BUPPERT, supra note 1, at 237 (recognizing that the standard of care
for NPs and MDs will be identical in many situations).
175. 968 So. 2d at 243.
176. 223 S.W.3d at 405.
177. Simonson, 225 S.W.3d at 872-74.
178. Id. at 877.
246 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
the standard of care for an NP is the same as an MD when examining or diagnosing a patient. 17 9 The Court reasoned that because the California legislature recognizes "overlapping functions"
between MDs and nurses, "examination" and "diagnosis" of a patient cannot be said as a matter of law to be a function exclusive to
MDs. 180 The trial court should have instructed the jury that an
1 1
NP is held to an NP standard of care. 8
E. Rhode Island Standard of Care and Overlapping Functions
Although Rhode Island holds medical professionals to the
same standard of care as similarly situated professionals acting in
similar circumstances, the Court also recognizes that its focus
should be on the acts performed in a malpractice action. To date
there are no Rhode Island cases which find that MDs and nonphysician health care providers perform overlapping functions.
Therefore, there are no cases which hold non-physician health
care professionals to the same standard of care as an MD when
performing overlapping functions.
As previously discussed, NPs and PAs perform many of the
same services as MDs. The main difference between these providers is that PAs always work under the supervision and control of a
supervising MD. NPs may or may not work independently.
Where an NP is employed in an MD supervised practice, the NP
would be similarly situated to the PA. In those circumstances
malpractice liability could be attributed to the supervising MD
under several different theories of liability. Where an NP is practicing independently, however, it appears that s/he provides overlapping services with a primary care MD. In a malpractice action
based on an overlapping function, I believe that the Court would
be inclined to hold an independently practicing NP and primary
care MD to the same standard of care.
IX. THEORIES OF LIABILITY
Non-physician health care providers can be sued directly for
professional malpractice. 18 2 Where NP or PA services are pro179. 695 P.2d 665, 673 (Cal. 1985).
180. Id. at 673-74.
181. Id. at 674.
182.
See, e.g., Siegel v. Husak, 943 So. 2d 209 (Fla. Dist. Ct. App. 2006)
2009]
PRACTICING WITHOUT A LICENSE
vided in collaboration with or under the supervision of an MD, the
MD may be sued separately for negligence. 183 The MD may be directly liable for negligent hiring and retention or negligent supervision.18 4 MDs are also held vicariously liable under the doctrine
85
of respondeat superior. 1
An MD-employer may be liable under the theory of negligent
hiring or retention where the MD knows, or should have known,
that the NP or PA is incompetent or unfit to perform their professional duties. 186 The MD-employer may also be found liable for
failing to use reasonable care to discover whether the employee is
competent. 18 7 Thus, MD-employers may be liable for failing to
check their employees' references, licensing and certifications or
88
for failing to periodically evaluate their performance. 1
Under the theory of failure to supervise, an MD may be found
liable if s/he fails to properly review or oversee the NP or PA.18 9
This theory of liability is based on the Restatement (Second) of
Agency which states that "[a] person conducting activity through
servants or other agents is subject to liability for harms resulting
from his conduct if he is negligent or reckless***in the supervision
of the activity."190 In some jurisdictions MDs are legislatively required to provide supervision. 191
(NP not individually responsible for misdiagnosis where NP recorded significant information in patient record from which supervising MD could have
made correct diagnosis). See generally BUPPERT, supra note 1, at 235-48;
ROTH-KAUFFMAN, supra note 1, at 431-55; McLean, supra note 18, at 270.
183. See supra note 182.
184. Chris L.Gore, A Physician's Liability for Mistakes of a Physician Assistant, 21 J. LEGAL MED. 125, 132-42 (2000).
185. Id.; see, e.g., Adams v. Krueger, 856 P.2d 864, 867 (1993) (MD liable
for NP misdiagnosis under doctrine of respondeat superior).
186. Gore, supra note 184, at 140-41.
187. Id.
188. Id.; McLean, supranote 18, at 264-65.
189. Gore, supra note 184, at 133-35; McLean, supra note 18, at 265-66;
see, e.g., MacDonald v. United States, 853 F. Supp. 1430, 1438 (M.D. Ga.
1994) (MD liable for failing to supervise PA by only reviewing 10% of patients
treated by PA); Andrews v. United States, 548 F. Supp. 603, 611-12 (D.S.C.
1982) (MDs at clinic responsible to properly supervise PA who sexually assaulted a patient).
190. RESTATEMENT (SECOND) OF AGENCY § 213 (1958).
191. See, e.g., GA. CODE ANN. § 43-34-26.1 (2008) (MD supervises NP); 244
MASS. CODE REGS. 4.22 (2008) (MD supervises NP); R.I. GEN. LAWS § 5-54-8
(MD supervises PA); 18 VA. ADMIN. CODE § 90-30-120(A) (2008) (NP practices
248 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
MDs may also be vicariously liable under the theory of respondeat superior.19 2 This doctrine imputes liability for employee
negligence to the employer based on the theory that the employee
is the agent or is acting for the employer. 193 In order to prove liability, the plaintiff must show that: an employer-employee relationship existed at the time of the alleged malpractice; the tortfeasor was acting on the MD's orders; and the MD had a right to
control the tortfeasor's actions. 194 Liability is easily established
against an MD where malpractice is based on PA services because
PAs are always acting under the supervision and control of a supervising MD. 19 5 It is also easier to prove MD liability for NP
malpractice under this theory in jurisdictions that legislatively re96
quire NP supervision or collaboration with an MD. 1
A. MD Liability in Rhode Island for NP and PA Malpractice
In Rhode Island, MD liability for NP or PA malpractice may
1 97
be established under the any of the theories listed above.
Rhode Island law mandates that all PAs act under the direct supervision and control of an MD. 198 MD supervision requires a
written policy agreement between the MD and PA which includes
a job description, program for quality assurance, supervision requirements, designated level of supervision, and MD availability
for easy communication and referral. 19 9 Liability for NP malpractice may be similarly attributed to a Rhode Island MD-employer
even though the Rhode Island General Laws do not "require" the
MD to supervise or collaborate with the NP-employee. 20 0 The
employment agreement itself may include its own supervision or
under supervision and direction of MD).
192. Gore, supra note 184, at 135-40; McLean, supra note 18, at 266-68.
193. Welsh Mfg., Div. of Textron v. Pinkerton's, 474 A.2d 436, 440 (R.I.
1984) (quotingDiCosala v. Kay, 450 A.2d 508, 515 (1982)).
194. McLean, supranote 18, at 266.
195. BUPPERT, supra note 1, at 10; Roth-Kauffman, supranote 1, at 1-2.
196. See Gore, supra note 184.
197. See Mainella v. Staff Builders Indus. Services, Inc., 608 A.2d 1141,
1144-45 (R.I. 1992). An employer may be liable for negligent hiring, supervising or retaining an employee if the employer knows or failed to use reasonable care to discover that the employee is unfit. Id. at 1144.
198.
R.I. GEN. LAWS § 5-54-(8)(a).
199.
200.
R.I. GEN. LAWS § 5-54-2(10).
R.I. GEN. LAWS § 5-34-3.
20091
PRACTICING WITHOUT A LICENSE
249
collaboration requirements.
X. NP PRIVATE SECTOR REQUIREMENTS
Although the State of Rhode Island allows NPs to provide
health care services independent of MD supervision or collaboration, the private sector may impose its own more restrictive requirements. The private sector includes NP employers, hospitals,
malpractice insurers and insurance payors. Presently, no Rhode
Island hospitals grant NPs admitting privileges. Therefore, if a
patient of an independently practicing primary care NP requires
hospitalization, s/he must either be admitted under the care of a
licensed physician who has admitting privileges at the particular
20 1
hospital or be cared for by a hospitalist physician.
Private sector restrictions usually require the NP to have a
written collaborative or supervision agreement with an MD. Professional liability insurance carriers may only issue malpractice
policies to NPs who are employed at MD managed
ties. 20 2Moreover, some insurance payors, like Blue Cross & Blue
Shield of Rhode Island, require an independently practicing NP to
have a written collaborative agreement with an MD who practices
at the same location. 20 3 Finally, NP employers may limit NP
201. A hospitalist physician is a hospital based physician who cares for
patients while they are hospitalized in place of their primary care provider.
MedicineNet.com,
http://www.medterms.com/script/mainlart.asp?articlekey=8384.
202. The Medical Malpractice Joint Underwriting Association of Rhode
Island (MMJUA of RI) imposes only one requirement on any health care professional seeking professional liability insurance which is that they earn at
least 51% of their income in Rhode Island. Medical ProfessionalLiability Insurance,
MMJUA
of
Rhode
Island,
available
at
http://www.rhodeislandjua.comlProducts.aspx. Marsh & McLennan Co. has
no collaboration requirements for NP professional liability insurance. Medi-
cal Professional Liability Occurrence Insurance Policy, Interstate Insurance
Group, PLJ-2037. But cf., NORCAL Mutual Insurance Co. will only provide
professional malpractice insurance to NPs through an MD-employer policy.
Professional Liability Insurance - Group Policy, NORCAL Mutual Ins. Co.,
availableat http://www.norcalmutual.com/coveragesl
NORCAL_GroupPolicySpecimen.pdf.
203. In order to become credentialed with Blue Cross Blue & Shield of
Rhode Island (BCBSRI) all NPs and PAs must have a "written supervisory/collaborative agreement, which is reviewed by the physician and midlevel practitioner at least annually." Requirements for CollaborativePractice
(RNPand PA), Blue Cross & Blue Shield of Rhode Island (revised 04/08). Al-
250 ROGER WILLIAMS UNIVERSITY LA WREVIEW [Vol. 14:215
scope of practice through the employment contract which may limit duties, impose practice protocols or mandate supervision. Regardless of certain private sector requirements, it is still possible
for Rhode Island NPs to practice autonomously.
XI. PUBLIC PERCEPTION
Health care consumers generally assume that the clinician
who is treating them is properly trained, competent, and practicing appropriately. 20 4 They believe that the services provided are
safe and the practitioner is qualified to perform them. 20 5 Studies
show that consumers are generally as satisfied or more satisfied
with the services provided by the average primary care NP over
206
the average primary care MD.
Consumers may also be confused about the professional sta-
tus of who is treating them.
This may be particularly true in
states that allow NPs to be addressed as "doctor." 20 7 Moreover, in
Oregon, NPs are considered "physicians" for purposes of rendering
treatment in workers' compensation cases. 20 8 Even MDs may be
confused about NP and PA education and scopes of practice. 20 9 In
Rhode Island, for instance, an MD who rendered emergency care
at an outside festival believed that a PA who also responded to the
10
incident was another MD. 2
To complicate the issue further, many nursing schools now offer a "clinical" doctorate of nursing which they argue make their
so, the MD is required to review all significant new problems and new patients on the same day of service. Id. The MD and mid-level practitioner
must practice at the same physical location and share the same medical
records. Id.
204. Federation of State Medical Boards, Assessing the Scope of Practice in
Health Care Delivery: Critical Questions in Assuring Public Access and Safeat
available
(2005),
ty
http://www.fsmb.org/pdf/2005-grpol-scope-oftpractice.pdf.
205. Id.
206. See Baker, supra note 25, at 332; Clive Seale, Treatment Advice in
Primary Care:a ComparativeStudy of Nurse Practitionersand General Practitioners, 54 J. ADV.NURSE 534, 540 (2006).
207. Six states allow NPs to be addressed as "doctor." Pearson, supranote
29, at 10.
208. Cook v. Workers' Comp. Dep't, 758 P.2d 854, 859 (Or. 1988).
209. Joy L. Delman, The Use and Misuse of Physician Extenders Aiding
and Abetting the Unauthorized Practice of Medicine, 24 J. LEGAL MED. 249,
258, 260 (2003).
210. Boccasile v. Cajun Music Ltd., 694 A.2d 686, 687-89 (R.I. 1997).
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PRACTICING WITHOUT A LICENSE
graduates "equivalent to primary-care physicians." 2 1 1 These professionals are referred to as "doctor-nurse practitioner" (DrNP) or
(DNP). The American Association of Colleges of Nursing distinguishes the care provided by these professionals from MDs, however, by stating that "[n]ursing and medicine are distinct health
disciplines that prepare clinicians to assume different roles and
meet different practice expectations. DNP programs will prepare
nurses for the highest level of nursing practice. ' 2 12 Apparently,
the National Board of Medical Examiners has agreed to develop a
certification examination for nurses with doctorate degrees based
on the same test physicians take to qualify for a medical license. 2 13
The American Medical Association opposes nonphysician scope of practice expansion and has formed a Scope of
2 14
Practice Partnership to address scope of practice issues.
Consumer perception of the clinician's professional identity is
a factor to consider when deciding whether NPs practice medicine
because the purpose of regulating the practice of medicine is to
protect the public. For this reason, some states have enacted legislation that requires NPs and other health care providers to wear
211. Laura Landro, The Informed Patient: Making Room for 'Dr. Nurse,
THE WALL STREET JOURNAL, April 2, 2008, at D1; see Cooper, supra note 115,
at 2; Columbia University School of Nursing, Doctoral Program Overview,
http://www.nursing.columbia.edu/programs/doc-prog-overview.html;
contra
Julie A. Stanik-Hutt, American College of Nurse Practitioners Response to
Wall
Street
Journal Article,
April
9,
2008,
available
at
http://www.acnpweb.org/files/publicfWSJ_letter to editor.pdf (NPs are not
physician practitioners, and since the medical board examination described
in the [Wall Street Journal] article [dated April 2, 2008,] is based on the practice of medicine, it is not an appropriate measure of any nurses' professional
expertise. NPs knowledge, skills and abilities are better evaluated by one of
the existing national board certification examinations.).
212. American Association of Colleges of Nursing, Frequently Asked Questions,
Position
on
the
Practice
Doctorate
in
Nursing,
http://www.aacn.nche.edu/DNP/DNPFAQ.htm.
213. Landro, supra note 211.
214. Ronald M. Davis, MD, American Medical Association, From the president,
July
19,
2007,
available
at
http://www.ama.org/ama/pub/category/17840.html; American Medical Association, Report of the Board of Trustees 24-A-06, available
at
http://www.acnm.org/siteFilesllegislative/AMABoard of TrusteesReport_24
A 06.pdf; American Association of Family Physicians, AAFP News Now,
Scope of Practice Partnership to Address 'Doctor-Nurse' Trend, 04/03/06,
http://www.aafp.org/online/enthome/publications/news/newsnow/professional-issues/20060403scope.html.
252 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
identification that visibly and unambiguously identifies them. 215
XII. TREND IN HEALTH CARE
Health care is moving from a physician based model to an interdisciplinary model where mid-level practitioners play a substantial role. 2 16 As of 2006, there were 110,000 NPs and PAs in
the United States comprising one sixth of the medical workforce. 2 17 Presently, more than twenty-five percent of all group
practices employ NPs and PAs. 218
They are also in demand at
health maintenance organizations and hospitals. 2 19
There are several factors that contribute to this trend. One
factor is that the number of medical school graduates cannot keep
up with rising population. 220 Also, the number of medical school
graduates going into primary care is decreasing. 2 21 Additionally,
cost and efficacy studies have demonstrated that NPs and PAs can
provide a majority of primary care safely and economically. 222
The trend in using NPs and PAs to perform primary care affects the legal community as well as the medical community. As a
Workers' Compensation Court judge, I must determine whether a
worker is disabled from work as a result of an injury or illness
which is causally related to the workplace. I rely on expert medical opinions to determine diagnosis, causal relationship and disa-
215. See, e.g., CAL. Bus. & PROF. CODE § 680 (West 2003); FLA. STAT. ANN.
§ 456.072 (t) (West 2008) (separate and different provision held unconstitutional); GA. CODE ANN. § 43-26-6 (c) (2008).
216. See Christian, supra note 1; B. G. Druss et al., Trends in Care by
Nonphysician Clinicians in the United States, N. ENG. J. MED. 130 (2003);
Hooker, supra note 33, at 4; Richard M. Scheffler et. al., The Productivity of
Physician Assistants and Nurse Practitionersand Health Work Force Policy
in the Era of Managed Health Care, 25 (3) J. ALLIED HEALTH, 207 (Summer
1996).
217. Hooker, supra note 33, at 4.
218. Id. at 5-6.
219. Id.
220. Id.
221. Id.
222. See supra notes 115-17 and accompanying text; Baker, supra note 25,
at 328 (private health care providers have increasingly recognized the economic advantages of using NPs); Hooker, supra note 33, at 5 (PAs and NPs
are cost effective); see generally Douglas W. Roblin, Use of Midlevel Practitioners to Achieve Labor Cost Savings in the Primary Care Practice of an
MCO, 39 (3) Health Serv. Res. 607, June 2004 (it is cost effective to use NPs
and PAs in primary care).
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253
bility status. In the past, only MDs were qualified to offer these
opinions. Presently, NPs and PAs may be qualified to offer expert
medical opinions. Often, I must weigh Pearan MD's opinion
against the opinion of an NP or PA. For this reason, it is important to understand the legal status and qualifications of NPs and
PAs in order to determine their ability to serve as expert medical
witnesses.
XIII.
RHODE ISLAND
NPs
AND
PAS
AS EXPERT WITNESSES
It is not uncommon for a health care expert in one discipline
22 3
to testify in a case involving an expert from another discipline.
In any case requiring expert medical testimony, the proffered expert must be qualified in accordance with Rhode Island Rule of
Evidence 702: counsel must establish that the expert's education,
training, knowledge, skill, and experience qualify her/him to render an expert opinion on the particular matter that is at issue before the court. In all cases, qualification of the expert is within the
2 24
sound discretion of the trial judge.
Once the expert is qualified, s/he must establish the facts
upon which s/he relied in rendering an opinion. 22 5 NPs and PAs
can be qualified to proffer opinions concerning diagnosis, causation, disability status and treatment. In medical malpractice cases, they may offer opinions on whether the defendant-practitioner
complied with the appropriate standard of care. PAs and NPs who
practice under the supervision of, or in collaboration with an MD
must establish that their opinions are based on acts or procedures
that they are authorized to perform within the scope of their duties. It may even be necessary to introduce the supervisory or collaborative agreement to establish that the NP or PA is testifying
about a specifically authorized activity. 2 26 Expert testimony may
be disregarded where counsel neglects to establish that the expert
was authorized to perform the services upon which the opinion is
223.
See generally Standard of Care, suprap. 25.
224. State v. Morales, 621 A.2d 1247, 1249 (R.I. 1993).
225. Rule 705 of the Rhode Rules of Evidence provides:
"Unless the court directs otherwise, before testifying in terms of opinion, an
expert witness shall be first examined concerning the facts or data upon
which the opinion is based."
226. Crawford v. Henderson 589 S.E. 2d 204, 215 (S.C. Ct. App. 2003).
254 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
based. 2 27 In all cases the trier of fact determines how much
weight to give each witness' testimony based on all the evidence
228
presented.
XIV. Do NPs PRACTICE MEDICINE IN RHODE ISLAND?
What distinguishes NP practice from MD practice is the education, training and knowledge of the individual practitioner. After reviewing the education and training; scopes of practice; and
professional services rendered; it is clear that the average MD has
more knowledge and training than the average NP, and is generally able to provide a broader spectrum of care. It is equally apparent, however, that the average NP's education and training
qualify her/him to safely and effectively provide many of the same
services as the average primary care MD. Recognizing that NPs
perform many MD functions; courts have allowed NPs to give expert testimony like MDs regarding diagnoses, causal relationship,
2 29
and disability status.
NPs and PAs have become a necessary and integral part of
the health care system. In the eyes of the general public they are
227. Id. at 214-215.
228. Kyle v. Pawtucket Redevelopment Agency, 262 A.2d 636, 638 (R.I.
1970); see State v. D'Alessio, 848 A.2d 1118, 1123-24 (R.I. 2004) (notes that
the extent of an expert witness' training is a question of weight, not admissibility).
229. State v. Cookson, 837 A.2d 101 (Me. 2003) (NP could testify to diagnosis of depression where statute allows NP to make medical diagnosis where
practice is delegated by licensed physician even though NP acted independently without supervision. Supreme Judicial Court said it goes to the
weight of the testimony and not admissibility); State v. Lyons, 725 A.2d 271
(R.I. 1999) (NP specializing in sexual abuse may testify to medical findings);
Rotondo v. Rhode Island Dep't of Human Serv., No. Civ.A. 04-1319, 2004 WL
2821640 (R.I. Super. Nov. 12, 2004) (Department of Human Services relies on
medical opinions rendered by non-physician health care providers to determine disability per federal regulations); Crawford, 589 S.E.2d at 211-215 (NP
can testify regarding medical diagnosis and causation; admit written protocols in the future to show NP acted in conformance; physician delegates duties to NP who acts under written protocols); Newbern v. State, No. 02-C-019106-CR00143, 1992 WL 124459 (Tenn. Crim. App. Aug. 24, 1992) (NP can
make medical diagnosis like physician); cf. Peckham v. Speegle Constr., Inc.,
896 So. 2d 815 (Fla. Dist. Ct. App. 2005) (PA can opine about disability in
workers' compensation case); In Re Walter R., A.2d 346 (Me. 2004) (PA can
give expert psychiatric testimony on diagnosis of depression); contra Keck v.
Metrohealth Med. Center, No. 89526, 2008 WL 519320 (Ohio Ct. App. Feb.
28, 2008) (NP not competent to testify to cause of bedsores).
2009]
PRACTICING WITHOUT A LICENSE
255
accepted and trusted primary care providers. Therefore it is important to clearly define the roles of these professionals.
Unfortunately, Rhode Island's legal definition of NP scope of
practice is vague. An NP is described as "an advanced practice
nurse utilizing independent knowledge of physical assessment and
management of health care and illness." 2 30 The practice "includes...collaboration with other health care providers" and also
"includes prescriptive privileges." 23 1 We are left to ponder what is
meant by these terms. Only NPs who comply with a separate
2 32
educational requirement may prescribe controlled substances.
Therefore, not all NP practice "includes" prescriptive privileges.
The term "includes" in this context is a term of "option." 23 3 The
NP can choose whether or not to have prescriptive privileges "in
addition to" physically assessing and managing health care and
illness, by presenting evidence to the board of nursing that s/he
has completed certain educational requirements in pharmacology.
The term "includes" may be similarly interpreted where it concerns collaboration with other health care professionals. Thus,
NPs may choose to collaborate with other healthcare professionals, but collaboration is not "required." The term "collaboration" is
similarly undefined. Even if one were to apply the Federal definition of this term as it applies to NPs which "requires" an NP to
work with an MD under "appropriate supervision," the NP may
choose not to "include" collaboration in her/his practice. 2 34 This is
not to suggest that NPs do not appropriately refer, consult or collaborate with other health care professionals. It merely points out
the vagueness of the definition.
While the definition of NP is vague, the Rhode Island definition of "practice of medicine" is broad. The "practice of medicine"
provides that: "[a]ny person is regarded as practicing medicine ***
who holds himself or herself out as being able to diagnose, treat,
operate, or prescribe for any person ill or alleged to be ill with disease, pain, injury, deformity or abnormal physical or mental condition, or who either professes to heal, offer or undertake, by any
230.
231.
R.I. GEN. LAws § 5-34-3 (3).
232.
Id.
See supra note 65.
233.
234.
See supra note 15 for definition of "include."
See supra note 15 for Federal definition of "collaboration."
256 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
means or method to diagnose, treat, operate, or prescribe for any
person for disease, pain, injury, deformity or physical or mental
23 5
condition."
Arguably, all advanced practice nurses who use independent
judgment along with chiropractors, optometrists, acupuncturists
and others may be considered practicing medicine in Rhode Island. 23 6 The Rhode Island legislature authorizes each of these pro-
235. R.I. GEN. LAws § 5-37-1 (14) (2004).
236. See, e.g., R.I. GEN. LAws § 5-29-1 (k) (2004), defines podiatrist as:
"a person licensed as described in this chapter, shall be considered a
physician and surgeon of the foot and ankle. For the purposes of
reimbursement by and for subscriber benefits/participation agreements with health maintenance organizations, nonprofit medical
service corporations, for-profit medical service corporations, and
third party insurers, it is unlawful to discriminate against podiatrists."
The practice of podiatry is defined under R.I. GEN. LAWS § 5-29-1 (1) (2004),
as:
"Any person is practicing podiatry within the meaning of this chapter who uses or permits to be used, directly or indirectly, for profit or
otherwise, for their own self or for any other person, in connection
with their own name, the word 'podiatrist' or 'podiatric physician
and surgeon,' or the title DPM, or any other words, letters, titles, or
descriptive matter, personal or not, which directly or indirectly implies the practice of podiatry, or who owns, leases, maintains, or operates a podiatry business in any office or other room or rooms where
podiatry operations are performed, or directly or indirectly is manager, proprietor or conductor of the business; or who directly or indirectly informs the public in any language, orally, in writing, or by
drawings, demonstrations, specimens, signs, or pictures that he or
she can perform or will attempt to perform foot operations of any
kind; or who undertakes, by any means or method, gratuitously or
for a salary, fee, money, or other reward paid or granted directly or
indirectly to himself or herself or to any other person, to diagnose or
profess to diagnose, or to treat or profess to treat, or to prescribe for
or profess to prescribe for any of the lesions, diseases, disorders, or
deficiencies of the pedal extremity. The foot is defined to be the pedal
extremity of the human body and its articulations, and shall include
the tendons and muscles of the lower leg only as they are involved in
the condition of the foot."
R.I. GEN. LAws § 5-30-1 (2004), provides as follows:
"For the purpose of this chapter, the practice of 'chiropractic medicine' is defined as the science and art of mechanical and material
healing as follows: the employment of a system of palpating and adjusting the articulations of the human spinal column and its appendages, by hand and electro-mechanical appliances, and the employment of corrective orthopedics and dietetics for the elimination of the
2009]
PRACTICING WITHOUT A LICENSE
257
cause of disease; provided, that chiropractic physicians may not
write prescriptions for drugs for internal medication nor practice major surgery as defined in chapter 37 of this title."
R.I. GEN. LAws § 5-34-3 (11) (2004), provides as follows:
'Psychiatric and mental health nurse clinical specialist' is an advanced practice nurse utilizing independent knowledge and management of mental health and illnesses. The practice may include
prescription privileges of certain legend medications, controlled substances from Schedule II classified as stimulants, and controlled
substances from Schedule IV within the scope of their practice. The
practice may include collaboration with other licensed health care
professionals, including, but not limited to, psychiatrists, psychologists, physicians, pharmacists, and nurses. The psychiatric and mental health clinical specialist holds the qualifications defined in § 534-40.1."
R.I GEN. LAws § 5-35-1 (amended Supp. 2008) provides in pertinent part as
follows:
"(a) 'Optometry' means the profession whose practitioners are engaged in the art and science of the evaluation of vision and the examination of vision and the examination and refraction of the human eye which includes: the employment of any objective or
subjective means for the examination of the human eye or its appendages; the measurement of the powers or range of human vision or
the determination of the accommodative and refractive powers of the
human eye or the scope of its functions in general and the adaptation of lenses, prisms, and/or frames for the aid of these; the prescribing, directing the use of or administering ocular exercises, visual training, vision training, or orthoptics, and the use of any optical
device in connection with these; the prescribing of contact lenses for,
or the fitting or adaptation of contact lenses to the human eye; the
examination or diagnosis of the human eye to ascertain the presence
of abnormal conditions or functions; and the application of pharmaceutical agents to the eye; provided, that no optometrist licensed in
this state shall perform any surgery for the purpose of detecting any
diseased or pathological condition of the eye. With respect to presently licensed optometrists, only presently licensed optometrists who:
(1) have satisfactorily completed a course in pharmacology, as it applies to optometry, at an institution accredited by a regional, professional, or academic accreditation organization which is recognized by
the national commission on accreditation, with particular emphasis
on the application of drugs to the eye for the purposes of detecting
any diseased or pathological condition of the eye; or the effects of any
disease or pathological condition of the eye, approved by the board of
examiners in optometry and the department; or (2)(i) have successfully passed all sections of the national board of examiners in optometry (NBEO) examination; and (ii) the treatment and management
of ocular disease (TMOD) examination, shall be permitted to apply
pharmaceutical agents to the eye for the purpose of detecting any
diseased or pathological condition of the eye, or the effects of any
258 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
237
fessionals to practice within the scope of their professions.
These professionals hold themselves out as being able to diagnose
and treat illnesses or injuries within the scope of their practices.
Therefore, the services rendered by each of them may fall within
238
the legal definition of medical practice.
Do NPs "practice medicine" as defined in Rhode Island law?
The answer is certainly "yes" where the NP is self-employed or
employed in a practice with other NPs and the NP does not maintain any type of a supervision or collaboration agreement with an
MD. The answer may be "no" if the NP is employed by an MD and
practices under a supervision or collaboration agreement. 239 The
issue is one of control; whether the NP is using independent
judgment to provide professional services. If s/he is not, the services provided could be considered delegated acts of an MD who is
lawfully authorized to practice medicine. Where the services are
provided by an independently practicing NP they most assuredly
fall within the legal definition of medical practice in Rhode Island.
Unfortunately, it is illegal for anyone other than a licensed
physician to practice medicine in Rhode Island. 2 40 Pursuant to
disease or pathological condition of the eye."
R.I. GEN. LAWS § 5-37.2-2(1) defines acupuncture as follows:
"'Acupuncture' means the insertion of needles into the human body
by piercing the skin of the body, for the purpose of controlling and
regulating the flow and balance of energy in the body."
The legislature recognizes acupuncture as a "healing art." Id. The term
"healing art" is not defined.
237. See supra note 235.
238. See supra note 234 and accompanying text.
239. Profl Health Care, Inc. v. Bigsby, 709 P.2d 86 (Colo. Ct. App. 1985)
(NP acting within established protocols under MD supervision is not practicing medicine); Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. 1983) (nurse not
practicing medicine when acting under MD's standing orders); Montana Soc'y
of Anesthesiologists v. Montana Bd. of Nursing, 171 P.3d 704 (Mont. 2007)
(independent certified registered nurse anesthetist practice is not practice of
medicine).
240. R.I. GEN. LAws § 3-37-12 (2004), provides as follows:
"Any person who is not lawfully authorized to practice medicine
within this state, and registered according to law, who practices
medicine or surgery or attempts to practice medicine or surgery, or
any of the branches of medicine or surgery, after having received or
with the intent of receiving, either directly or indirectly, any bonus,
gift or compensation, or who opens an office with intent to practice
medicine, or holds himself or herself out to the public as a practitioner of medicine, whether by appending to his or her name the title
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PRACTICING WITHOUT A LICENSE
R.I. Gen Laws § 5-37-2, only physicians who have graduated from
an approved medical school, completed post graduate training requirements and passed a national certification examination may
practice medicine. In order to rectify this legislative inconsistency, Rhode Island must either redefine the "practice of medicine" or
exempt NPs and other health care providers from it. I believe that
the appropriate legislative solution is to exempt NP practice from
the practice of medicine. This solution does not preclude the court
from finding that NPs perform many of the same professional services as MDs, nor does it preclude the court from holding NPs to
the same standard of care as MDs when performing overlapping
functions. Rather, it acknowledges that NP practice falls within
the scope of medical practice, yet it distinguishes NPs from MDs
based on their education and training.
From a public policy viewpoint, regardless whether NP
practice is or is not considered practicing medicine, NPs should be
held to the same standard of care as MDs when performing overlapping professional services. The reasons for this are quite simple. First, both professionals are essentially relying on the same
methods of practice including similar clinical evaluations and diagnostic tests. 2 4 1 Second, both employ the same treatment modalities including prescriptive medication and other therapeutic
treatment. 2 42 Third, holding NPs to the same standard of care as
MDs when performing overlapping duties will help regulate the
profession and maintain high quality health care. 243 Finally, the
general public has the right to expect that all state licensed medical professionals who are authorized to provide particular professional services are equally competent to do so.
doctor or any abbreviation, or M.D., or any other title or designation
implying a practitioner of medicine, or in any other way, shall be imprisoned not more than three (3) years, or fined not more than one
thousand dollars ($1,000), or shall suffer both fine and imprison.
*ment; and in no case when any provision of this chapter has been violated shall the person violating these provisions be entitled to receive compensation for services rendered."
241. See Professional Services, supra p. 17.
242. Id.
243. See generally Coleman, supra note 38.
260 ROGER WILLIAMS UNIVERSITYLAWREVIEW [Vol. 14:215
XV. PROPOSED LEGISLATION
The proposed legislation exempts NP practice from the practice of medicine. It also amends the definition of NP which will
clarify their role as primary care providers within the scope of
their education and training. Additionally, it acknowledges NPs
as secondary and tertiary care providers under appropriate supervision or collaboration.
I also propose including NPs in certain legislation that presently only applies to primary care MDs. I believe that many of
the same legislative requirements and protections should apply to
NPs because they are also primary care providers. The proposed
legislation contained in Appendix I, will resolve present conflicts
2 44
and will further clarify the NP's role in Rhode Island.
244. R.I GEN. LAWS § 5-37-2 (Supp. 2008), provides in pertinent part as follows:
"(a)(1) Authority to practice allopathic or osteopathic medicine under
this chapter shall be by a license issued by the director of the department of health to any reputable physician who intends to practice allopathic or osteopathic medicine in this state, and who meets
the requirements for licensure established in this chapter and regulations established by the board or by the director. Applicants for licensure shall present satisfactory evidence of graduation from a
medical school or school of osteopathic medicine approved by the
board and in good standing, shall meet post graduate training requirements and any other requirements that the board or director
establishes by regulation, and shall pass in a satisfactory manner
any examination that the board may require. Any physician applying for licensure shall pay an application fee of five hundred and seventy dollars ($570) and that fee shall in no case be returned. Applicants requiring reexamination shall submit a fee of five hundred and
seventy dollars ($570) for each reexamination.
(2) A license to practice allopathic medicine shall be issued to persons who have graduated from a school of medicine, possess a degree
of doctor of medicine (or meet the requirements of subsection (b) of
this section), and meet the requirements for licensure.
(3) A license to practice osteopathic medicine shall be issued to persons who have graduated from a school of osteopathic medicine and
possess a degree of doctor of osteopathy and otherwise meet the requirements for licensure. A license to practice osteopathic medicine
shall confer upon the holder the right to practice osteopathic medicine in all its branches as taught and practiced in accredited colleges
of osteopathic medicine. The holder of that license shall be subject to
the same duties and liabilities and entitled to the same rights and
privileges, which may be imposed by law or governmental regulation, upon physicians of any school of medicine."
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In addition to the above referenced changes, Appendix I addresses many other aspects of NP practice. For instance, under a
durable power of attorney, terminally ill patients will have the
right to authorize their primary care NP to issue a do not resuscitate order and to withhold or withdraw life support. The NP will
be immunized from liability when complying with the durable
power of attorney.
The proposed legislation requires NPs to wear identification
tags when rendering professional services which will clearly identify them by name and professional status. Legislation concerning
prescriptive privileges that previously applied only to MDs will also apply equally to NPs. NPs will be required to clearly identify
themselves on prescription slips and each prescription will authorize a generic equivalent unless a brand name is specified. NPs
will be subject to the same penalties as physicians for violating
these provisions. NPs will also be forbidden from issuing blank
prescriptions and fee splitting.
Additionally, NPs will be required to provide notice to patients where the NP does not participate in a medical insurance
plan, and retiring or deceased NPs will be required to preserve or
transfer medical records. The proposed legislation also imposes
quality assurance, reporting, confidentiality and screening requirements concerning such matters as mammograms, pap
smears, gun shot wounds, scoliosis, sexually transmitted or infectious diseases, rodent control and lead paint poisoning. It allows
the admission of deceased NPs' records in workers' compensation
cases. Finally, health plans will be required to provide written notice before materially modifying the terms of their participating
agreement with an NP and will allow the NP to amend or terminate her/his contract with the health plan.
XVI. CONCLUSION
In Rhode Island, NPs are authorized to practice autonomously, using their independent judgment to provide many of the same
professional services as primary care MDs. They have become an
integral part of our health care system. It is predicted that the
number of NPs and PAs rendering primary care will continue to
increase in the future due to economics and increasing population.
While education and training distinguish the average NP from the
average MD, efficacy studies demonstrate that NPs are capable of
262 ROGER WILLIAMS UNIVERSITY LA WREVIEW [Vol. 14:215
providing overlapping services with comparable outcomes.
It is the state's prerogative to regulate health care. In doing
so, the state recognizes that health care professional services are
dynamic and changing. Current Rhode Island legislation provides
an imprecise definition of NP and a broad definition of medical
practice. As a result, NP authorized professional services could be
considered practicing medicine which is legislatively prohibited for
anyone but a licensed physician.
Rhode Island must recognize that an interprofessional intersection exists where NPs and MDs render overlapping services.
Therefore, NP practice should be exempt from the legislative definition of the practice of medicine. Nevertheless, NPs should be
held to the same standard of care as MDs when performing overlapping services. The standard of care should be based on the service performed rather than the status of the professional performing the service.
The legislature should amend current legislation to unambiguously define and regulate NP practice. This will ensure that
health and safety regulations apply equally to all primary care
providers. Requiring consistent practices among health professionals who provide overlapping services will produce high quality
health care for society.
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APPENDIX I: PROPOSED LEGISLATIVE AMENDMENTS
Note: All proposed language is underlined and all stricken
language has a strike through it.
Title 5 Businesses and Professions
Chapter 5-34 - Nurses
5-34-3 Definitions.
As used in this chapter:
(1) "Advanced practice nurse" means the status of qualified
individuals who hold an active license as a registered nurse and
an active license as a nurse in an advanced role as defined under
the provisions of this chapter or chapter 5-34.2.
(2) "Approval" means the process where the board of nursing
evaluates and grants official recognition to basic nursing education programs meeting established criteria and standards.
(3)"Board" means the Rhode Island board of nurse reistration and nursing education or any committee or subcommittee
thereof.
(,&) (4)"Certified registered nurse practitioner" or "nurse practitioner" is an advanced practice nurse atilizing who uses inde.al
assessment and managcmcnt of
pendent knowledge of phys
......
l.th
. anfd
...
ses.
. The
. pra.tie
...... inel.d
. p -..
pi
prii
leg...
The p.atie
in-ludes
.
llabor-aticn
4ith other lkcensed
hcealth cearce ptrofesioniils ineluding, but not liffiited to, physi ia,
pharm its, pediatris , dentists and .u... to deliver primary.
secondary or tertiary care within the nurse practitioner's knowledge, education, training and certification pursuant to secs. 5-3435 and 5-34-39. Nurse practitioners provide secondary and tertiary care in collaboration with other specialty health professionals who are licensed and certified to deliver the same secondary
and tertiary care.
(5)"Collaboration" means the nurse practitioner works with
other specialty health professionals to deliver appropriate professional services within the scope of the nurse practitioner's professional expertise.
(4 (6)"Department" means the department of health.
(5)(7)"Health" means optimum well-being.
() (8)"HealtheAre" "Health care" means those services provided to promote the optimum well-being of individuals.
264 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
(-7) (9 "Licensed" means the status of qualified individuals
who have completed a designated process by which the board of
nursing grants permission to individuals accountable and/or responsible for the practice of nursing and to engage in that practice, prohibiting all others from legally doing so.
(8) (10) "Nursing" means the provision of services that are essential to the promotion, maintenance, and restoration of health
throughout the continuum of life. It provides care and support of
individuals and families during periods of wellness, illness, and
injury, and incorporates the appropriate medical plan of care prescribed by a licensed physician, dentist, or podiatrist. It is a distinct component of health services. Nursing practice is based on
specialized knowledge, judgment, and nursing skills acquired
through educational preparation in nursing and in the biological,
physical, social, and behavioral sciences.
(9) (11) "Practical nursing" is practiced by licensed practical
nurses (L.P.N.s). It is an integral part of nursing based on a knowledge and skill level commensurate with education. It includes
promotion, maintenance, and restoration of health and utilizes
standardized procedures leading to predictable outcomes, which
are in accord with the professional nurse regimen under the direction of a registered nurse. In situations where registered nurses
are not employed, the licensed practical nurse functions under the
direction of a licensed physician, dentist, podiatrist or other licensed health care providers authorized by law to prescribe. Each
L.P.N. is responsible for the nursing care rendered.
(12) "Primary care", as defined by the Institute of Medicine,
means the provision of integrated, accessible health care services
by clinicians who are accountable for addressing a large majority
of personal health care needs, developing a sustained partnership
with patients, and practicing in the context of family and community.
(0
(13) "Professional nursing" is practiced by registered
nurses (R.N.s). The practice of professional nursing is a dynamic
process of assessment of an individual's health status, identification of health care needs, determination of health care goals with
the individual and/or family participation and the development of
a plan of nursing care to achieve these goals. Nursing actions, including teaching and counseling, are directed toward the promotion, maintenance, and restoration of health and evaluation of the
20091
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265
individual's response to nursing actions and the medical regimen
of care. The professional nurse provides care and support of individuals and families during periods of wellness and injury, and incorporates where appropriate, the medical plan of care as prescribed by a licensed physician, dentist or podiatrist or other
licensed health care providers authorized by law to prescribe.
Each R.N. is directly accountable and responsible to the consumer
for the nursing care rendered.
(14) "Professional services" for purposes of title 5,means the
rendering of personal services by a person licensed to practice a
health care profession.
(14) (15) "Psychiatric and mental health nurse clinical specialist" is an advanced practice nurse utilizing independent knowledge and management of mental health and illnesses. The practice may include prescription privileges of certain legend
medications, controlled substances from Schedule II classified as
stimulants, and controlled substances from Schedule IV within
the scope of their practice. The practice may include collaboration
with other licensed health care professionals, including, but not
limited to, psychiatrists, psychologists, physicians, pharmacists,
and nurses. The psychiatric and mental health clinical specialist
holds the qualifications defined in § 5-34-40.1.
(16) "Secondary care" is treatment provided by a licensed and
certified health care specialist.
(17) "Tertiary care" is treatment provided at a health care
center that includes highly trained health care specialists.
5-34-38.1 Identification of certified registered nurse
practitioner.
Any person who is licensed as a certified registered nurse
practitioner shall identify that he or she is so licensed by displaying either the title "certified registered nurse practitioner" or
"nurse practitioner," or the abbreviation "R.N.P.," on a name tag
or other similar form of identification during times when such
person is providing direct patient care.
5-34-39.1 Prescription slips.
Every prescription slip issued by a certified registered nurse
practitioner shall contain the clearly-printed name and address of
the issuing practitioner. In addition, every prescription written in
this state shall have one line for the practitioner's signature.
266 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
5-34-39.2 Certified registered nurse practitioners required to authorize product selection.
Every certified registered nurse practitioner, when prescribing any drug by brand name, shall in each prescription, oral, written or electronic, authorize a less expensive generic equivalent
drug product by signing the prescription. If. in the professional
judgment of the prescribing practitioner, the brand name is medically necessary, the practitioner shall indicate "brand name necessary" on the prescription form. Pursuant to § 42-127.1-7 and chapter 19.1 of this title, an electronic signature shall satisfy this
requirement.
5-34-39.3 Penalty for violating § 5-34-19.1 or 5-34-19.2.
Any person, firm or corporation, who violates any of the provisions of § 5-34-19.1 or 5-34-19.2 shall be fined not more than one
hundred dollars ($100) for each violation.
5-34-39.4 Blank prescriptions.
Any certified registered nurse practitioner who signs a prescription in blank and delivers it to a patient or any other person
except a duly licensed pharmacist shall be fined no more than five
hundred dollars ($500).
5-34-39.5 Fee splitting.
No certified registered nurse practitioner shall directly or indirectly receive payment, reimbursement, compensation, or fee for
a referral to any clinical laboratory. A violation of the provisions of
this section shall constitute a misdemeanor and upon conviction
thereof may be punished by imprisonment for not longer than one
year or a fine of not more than five hundred dollars ($500), or
both.
5-34-39.6 Disclosures.
(a)(1) Any certified registered nurse practitioner who is not a
participant in a medical insurance plan shall post a notice, in a
conspicuous place in his or her medical offices where it can be read
by his or her patients, which reads, in substance, as follows:
' To my patients:
I do not participate in a medical insurance plan. You should
know that you shall be responsible for the payment of my professional fees."
(2) Any certified registered nurse practitioner who fails to
post this notice shall not be entitled to charge his or her patients
any amount for professional fees in excess of that allowed had the
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practitioner participated in a medical insurance plan.
(b) Every certified registered nurse practitioner shall disclose
to patients eligible for Medicare, in advance of treatment, whether
the practitioner accepts assignment under Medicare reimbursement as payment in full for professional services and/or treatment
in the practitioner's office. This disclosure shall be given by posting in each practitioner's office, in a conspicuous place, a summary
of the practitioner's Medicare reimbursement policy. Any practitioner who fails to make the disclosure as required in this section
shall not be allowed to charge the patient in excess of the Medicare assignment amount for the professional procedure performed.
(c) When a patient requests, in writing, that his or her medical records be transferred to another certified registered nurse
practitioner, physician or medical practice group, the original certified registered nurse practitioner or nurse practitioner practice
group shall promptly honor the request. The certified registered
nurse practitioner or nurse practitioner practice group shall be
reimbursed for reasonable expenses (as defined by the director
pursuant to § 23-1-48) incurred in connection with copying the
medical records.
(d) Every certified registered nurse practitioner or nurse practitioner practice group shall, upon written request of any patient
(or his or her authorized representative as defined in § 5-37.3-3(1))
who has received health care services from the certified registered
nurse practitioner or nurse practitioner practice group, at the option of the certified registered nurse practitioner or nurse practitioner practice group either permit the patient (or his or her authorized representative) to examine and copy the patient's
confidential health care information, or provide the patient (or his
or her authorized representative) a summary of that information.
If the certified registered nurse practitioner or nurse practitioner
practice group decides to provide a summary and the patient is
not satisfied with a summary, then the patient may request, and
the certified registered nurse practitioner or nurse practitioner
practice group shall provide, a copy of the entire record. At the
time of the examination, copying or provision of summary information, the certified registered nurse practitioner or nurse practitioner practice group shall be reimbursed for reasonable expenses
(as defined by the director pursuant to § 23-1-48) in connection
with copying this information. If, in the professional judgment of
268 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
the treating certified registered nurse practitioner, it would be injurious to the mental or physical health of the patient to disclose
certain confidential health care information to the patient, the
certified registered nurse practitioner or nurse practitioner practice group shall not be required to disclose or provide a summary
of that information to the patient, but shall upon written request
of the patient (or his or her authorized representative) disclose
that information to another certified registered nurse practitioner,
nurse practitioner practice group, physician or medical practice
group designated by the patient.
(e) Every certified registered nurse practitioner who has ownership interest in health facilities or laboratories, including any
health care facility licensed pursuant to chapter 17 of title 23, any
residential care/assisted living facility licensed pursuant to chapter 17.4 of title 23, any adult day care program licensed or certified by the director of the department of elderly affairs, or any
equipment not on the certified registered nurse practitioner's
premises, shall, in writing, make full patient disclosure of his or
her ownership interest in the facility or therapy prior to utilization. The written notice shall state that the patient has free choice
either to use the certified registered nurse practitioner's proprietary facility or therapy or to seek the needed professional services
elsewhere.
(f) Unless otherwise expressly stated in writing by the nurse
practitioner practice group, all medical records shall be the property of the nurse practitioner practice group with which a certified
registered nurse practitioner is associated when that nurse practitioner created all such medical records. A nurse practitioner practice group shall provide patients with access to patients' medical
records in the same manner as is required of individual nurse
practitioner's under this chapter. To the extent a nurse practitioner practice group fails to provide access to patients in accordance
with the requirements of this chapter, the individual officers of
the nurse practitioner practice group (or in the absence of officers,
the shareholders or owners of the nurse practitioner practice
group), in their capacities as licensees of the board, shall be subject to the disciplinary powers of the board.
5-34-39.7 Closure of nurse practitioner practice - Preservation of records.
(a) A certified registered nurse practitioner shall, at least ni-
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nety (90) days before closing his or her practice, give public notice
as to the disposition of patients' medical records in a newspaper
with a statewide circulation, and shall notify the Rhode Island
board of nurse registration and nursing education of the location
of the records. The public notice shall include the date of the nurse
practitioner's retirement, and where and how patients may obtain
their records both prior to and after closure of the nurse practitioner's practice.
(b) The heirs or estate of a deceased nurse practitioner who
had been practicing at the time of his or her death shall, within
ninety (90) days of the nurse practitioner's death, give public notice as to the disposition of patients' medical records in a newspaper with a statewide circulation, and shall notify the Rhode Island
board of nurse registration and nursing education of the location
of the records.
(c) Any nurse practitioner closing his or her practice, or the
heirs or estate of a deceased nurse practitioner who had been
practicing at the time of his or her death, shall dispose of the
nurse practitioner's patient records in a location and manner so
that the records are maintained and accessible to patients.
(d) Any person or corporation or other legal entity receiving
medical records of any retired nurse practitioner or deceased
nurse practitioner who had been practicing at the time of his or
her death, shall comply with and be subject to the provisions of
chapter 37.3 of this title, the Confidentiality of Health Care Information Act, and shall be subiect to the rules and regulations
promulgated in accordance with § 23-1-48 and with the provisions
of § 5-34-19.6 (c) and (d), even though this person, corporation, or
other legal entity is not a physician or nurse practitioner.
5-34-39.8 Mammograms - Quality assurance standards.
Any certified registered nurse practitioner interpreting a
mammogram must meet state-approved quality assurance standards for interpreting mammograms. The director of the department of health has the authority to promulgate rules and regulations necessary to carry out the provisions of this section.
5-34-39.9 Pap smears - Quality assurance standards.
Any certified registered nurse practitioner taking a pap smear
or supervising the taking of a pap smear shall submit the smear
for processing only to a laboratory which is licensed by the Rhode
Island department of health specifically to perform cervical cytolo-
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gy, or is accredited by the American Society of Cytology, or is accredited by the College of American Pathologists, or is a hospital
accredited by the joint commission for the accreditation of health
care organizations, or is a hospital accredited by the American Osteopathic Association.
Title 5 Businesses and Professions
Chapter 5-37 - Board of Medical Licensure and Discipline
5-37-1 Definitions.
As used in this chapter:
(1) "Board" means the Rhode Island board of medical licensure and discipline or any committee or subcommittee thereof.
(2) "Chief administrative officer" means the administrator of
the Rhode Island board of medical licensure and discipline.
(3) "Department" means the Rhode Island department of
health.
(4) "Director" means director of the Rhode Island department
of health.
(5) "Health care facility" means any institutional health service provider licensed pursuant to the provisions of chapter 17 of
title 23.
(6) "Health maintenance organization" means a public or private organization licensed pursuant to the provisions of chapter 17
of title 23 or chapter 41 of title 27.
(7) "Limited registrant" means a person holding a limited registration certificate pursuant to the provisions of this chapter.
(8) 'Iedical malpractice" or "malpractice" means any tort, or
breach of contract based on health care or professional services
rendered, or which should have been rendered, by a health care
provider listed in § 7-5.1-2 or by a physeian, dentist, hospital,
clinic, health maintenance organization or professional service
corporation providing health care services and organized under
chapter 5.1 of title 7, to a patient or the rendering of medically
unnecessary services except at the informed request of the patient.
(9) 'Medical practice group" means a single legal entity
formed primarily for the purpose of being a physician group practice in any organizational form recognized by the state in which
the group practice achieves its legal status, including, but not li-
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mited to, a partnership, professional corporation, limited liability
company, limited liability partnership, foundation, not-for-profit
corporation, faculty practice plan, or similar association.
(10) "Nonprofit medical services corporation" or "nonprofit
hospital service corporation" means any corporation organized
pursuant to chapter 19 or chapter 20 of title 27 for the purpose of
establishing, maintaining, and operating a nonprofit medical service plan.
(11) "Peer review board" means any committee of a state or local professional association or society including a hospital association, or a committee of any licensed health care facility, or the
medical staff thereof, or any committee of a medical care foundation or health maintenance organization, or any committee of a
professional service corporation or nonprofit corporation employing twenty (20) or more practicing professionals, organized for the
purpose of furnishing medical service, or any staff committee or
consultant of a hospital service or medical service corporation, the
function of which, or one of the functions of which is to evaluate
and improve the quality of health care rendered by providers of
health care service or to determine that health care services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of
health care rendered was considered reasonable by the providers
of professional health care services in the area and shall include a
committee functioning as a utilization review committee under the
provisions of 42 U.S.C. § 1395 et seq.(Medicare law) or as a professional standards review organization or statewide professional
standards review council under the provisions of 42 U.S.C. § 1301
et seq. (professional standards review organizations) or a similar
committee or a committee of similar purpose, to evaluate or review
the diagnosis or treatment of the performance or rendition of medical or hospital services which are performed under public medical
programs of either state or federal design.
(ii) "Peer review board" also means the board of trustees or
board of directors of a state or local professional association or society, a licensed health care facility, a medical care foundation, a
health maintenance organization, and a hospital service or medical service corporation only when such board of trustees or board
of directors is reviewing the proceedings, records, or recommendations of a peer review board of the above enumerated organiza-
272 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
tions.
(12) "Person" means any individual, partnership, firm, corporation, association, trust or estate, state or political subdivision, or
instrumentality of a state.
(13) "Physician" means a person with a license to practice allopathic or osteopathic medicine in this state under the provisions
of this chapter.
(14) "Practice of medicine" includes the practice of allopathic
and osteopathic medicine. Any person is regarded as practicing
medicine within the meaning of this chapter who holds himself or
herself out as being able to diagnose, treat, operate, or prescribe
for any person ill or alleged to be ill with disease, pain, injury, deformity or abnormal physical or mental condition, or who either
professes to heal, offer or undertake, by any means or method to
diagnose, treat, operate, or prescribe for any person for disease,
pain, injury, deformity or physical or mental condition. In addition, one who attaches the title, M.D., physician, surgeon, D.O.,
osteopathic physician and surgeon, or any other similar word or
words or abbreviation to his or her name indicating that he or she
is engaged in the treatment or diagnosis of the diseases, injuries
or conditions of persons shall be held to be engaged in the practice
of medicine.
5-37-12.1 Certified registered nurse practitioner exemption from practice of medicine
All certified registered nurse practitioners as defined in § 534-3, shall not be regarded as practicing medicine when providing
services within the scope of their professional practice.
Title 9 Courts and Civil Procedure - Procedure Generally
Chapter 9-19 Evidence
9-19-41 Expert witnesses in malpractice cases.
In any legal action based upon a cause of action arising on or
after January 1, 1987, for personal injury or wrongful death filed
against a licensed physician, certified registered nurse practitioner, hospital, clinic, health maintenance organization, professional
service corporation providing health care services, dentists, or
dental hygienist based on professional negligence, only those persons who by knowledge, skill, experience, training, or education
qualify as experts in the field of the alleged malpractice shall be
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273
permitted to give expert testimony as to the alleged malpractice.
9-19-29 Admissibility of records of deceased physicians,
dentists and professional engineers.
(a) In all actions for the recovery of benefits under the Workers' Compensation Act, chapters 29 - 38 of title 28, for personal injury or death, and in all actions for the recovery of damages for
personal injury or death in any civil proceeding, if a physician,
dentist, nurse practitioner, or professional engineer has died prior
to the time of the trial of the action, the written records, reports,
or bills of the physician, nurse practitioner, or dentist concerning
the patient who suffered the injury or death, and the reports and
scale drawings of the professional engineer concerning matter relevant to the circumstances under which the injury or death was
sustained, shall be admissible in evidence.
(b) In all actions for the recovery of benefits under the Workers' Compensation Act for personal injury or death and in all actions for the recovery of damages for personal injury or death in
any civil proceeding, if a physician, dentist, nurse practitioner, or
professional engineer has moved out of this state prior to trial or
cannot be located within this state after a reasonable search, and
whose whereabouts and address are unknown, any written
records, reports, or bills of the physician, nurse practitioner, or
dentist concerning the patient who suffered the injury or death,
and the reports and scale drawings of the professional engineer
concerning matter relevant to the circumstances under which the
injury or death was sustained, shall be admissible in evidence and
the patient may testify as to the medical or dental services provided and the treatment received, and another physician nurse
practitioner, or dentist may provide evidence as to the medical or
dental services or treatment as if the physician, nurse practitioner or dentist had been the one who rendered the services or
treatment, including evidence as to the fair and reasonable charge
for the services, the necessity of the services or treatment and any
other matter.
Title 11 Criminal Offenses
Chapter 11-47 Weapons
11-47-48 Report of gunshot wounds.
Every physician or nurse practitioner attending or treating a
case of bullet wound, gunshot wound, powder burn, or any other
274 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
injury arising from or caused by the discharge of a gun, pistol, or
other firearm, or whenever any case is treated in a hospital, sanitarium, dispensary, or other institution the person in charge of it,
shall report the case at once to the police authorities of the town
or city where the physician, nurse practitioner, hospital, sanitarium, dispensary or institution is located. This section shall not
apply to wounds, burns, or injuries received by any member of the
armed forces of the United States or of this state while engaged in
the actual performance of duty. Whoever violates any provision of
this section shall be punished by a fine of not less than fifty dollars ($50.00) nor more than one hundred dollars ($100).
Title 16 Education
Chapter 16-21 Health and Safety of Pupils
16-21-10 Scoliosis screening.
The school health program shall provide for the yearly screening or examination for scoliosis of all school children in grades six
(6) through eight (8) and the preservation of records of the screening or examinations of those children. The parent or guardian of
any child in grades six (6) through eight (8) may have the screening or examination conducted by a private physician or nurse
practitioner, and the results shall be made available to the local
school department. Otherwise, the screening shall be conducted by
a certified nurse-teacher. The screening of male and female pupils
shall be conducted separately. The parent or guardian of any child
who is found to have positive signs or symptoms of scoliosis shall
be notified of the findings. However, the test shall not be required
of any student whose parents or guardian objects on the ground
that the test conflicts with their religious belief.
Title 23 Health and Safety
Chapter 23-4.10 Health Care Power of Attorney
23-4.10-1 Purpose.
(a) The legislature finds that adult persons have the fundamental right to control the decisions relating to the rendering of
their own medical care.
(b) In order that the rights of patients may be respected even
after they are no longer able to participate actively in decisions
about themselves, the legislature declares that the laws of the
state shall recognize the right of an adult person to make a writ-
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275
ten durable power of attorney which might include instructing his
or her physician or nurse practitioner to withhold or withdraw
life-sustaining procedures in the event of a terminal condition.
23-4.10-1.1 Definitions.
The following definitions govern the construction of this chapter:
(1) "Advance directive protocol" means a standardized, statewide method developed for emergency service personnel by the
department of health and approved by the ambulance service advisory board, of providing palliative care to, and withholding lifesustaining procedures from, a qualified patient.
(2) "Artificial feeding" means the provision of nutrition or hydration by parenteral, nasogastric, gastric, or any means other
than through per oral voluntary sustenance.
(3) ".Attending physician" "Attending clinician" means the
physician or nurse practitioner, who has primary responsibility for
the treatment and care of the patient.
(4) "Director" means the director of health.
(5) "Durable power of attorney" means a witnessed document
executed in accordance with the requirements of § 23-4.10-2.
(6) "Emergency medical services personnel" means paid or volunteer firefighters, law enforcement officers, first responders,
emergency medical technicians, or other emergency services personnel acting within the ordinary course of their professions.
(7) "Health-care provider" means a person who is licensed,
certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of
a profession.
(8) "Life-sustaining procedure" means any medical procedure
or intervention that, when administered to a patient, will serve
only to prolong the dying process. "Life-sustaining procedure"
shall not include any medical procedure or intervention considered
necessary by the attending physician or emergency service personnel to provide comfort, care, or alleviate pain.
(9) "Person" means an individual, corporation, business trust,
estate, trust, partnership, association, government, governmental
subdivision or agency, or any other legal entity.
(10) "Physician and/or doctor" means an individual licensed to
practice medicine in this state.
(11) "Nurse practitioner" means an individual licensed as a
276 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
certified registered nurse practitioner pursuant to § 5-34-3.
(-1-) (12) "Terminal condition" means an incurable or irreversible condition that, without the administration of life-sustaining
procedures, will, in the opinion of the attending physician, result
in death.
23-4.10-2 Statutory form of durable power of attorney.
The statutory form of durable power of attorney is as follows:
STATUTORY FORM DURABLE POWER OF ATTORNEY
FOR HEALTH CARE
WARNING TO PERSON EXECUTING THIS DOCUMENT
This is an important legal document which is authorized by
the general laws of this state. Before executing this document, you
should know these important facts:
You must be at least eighteen (18) years of age and a resident
of the state for this document to be legally valid and binding.
This document gives the person you designate as your agent
(the attorney in fact) the power to make health care decisions for
you. Your agent must act consistently with your desires as stated
in this document or otherwise made known.
Except as you otherwise specify in this document, this document gives your agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.
Notwithstanding this document, you have the right to make
medical and other health care decisions for yourself so long as you
can give informed consent with respect to the particular decision.
In addition, no treatment may be given to you over your objection
at the time, and health care necessary to keep you alive may not
be stopped or withheld if you object at the time.
This document gives your agent authority to consent, to
refuse to consent, or to withdraw consent to any care, treatment,
service, or procedure to maintain, diagnose, or treat a physical or
mental condition. This power is subject to any statement of your
desires and any limitation that you include in this document. You
may state in this document any types of treatment that you do not
desire. In addition, a court can take away the power of your agent
to make health care decisions for you if your agent:
(1) Authorizes anything that is illegal,
(2) Acts contrary to your known desires, or
(3) Where your desires are not known, does anything that is
clearly contrary to your best interests.
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Unless you specify a specific period, this power will exist until
you revoke it. Your agent's power and authority ceases upon your
death except to inform your family or next of kin of your desire, if
any, to be an organ and tissue owner.
You have the right to revoke the authority of your agent by
notifying your agent or your treating deete* clinician, hospital, or
other health care provider orally or in writing of the revocation.
Your agent has the right to examine your medical records and
to consent to their disclosure unless you limit this right in this
document.
This document revokes any prior durable power of attorney
for health care.
You should carefully read and follow the witnessing procedure
described at the end of this form. This document will not be valid
unless you comply with the witnessing procedure.
If there is anything in this document that you do not understand, you should ask a lawyer to explain it to you.
Your agent may need this document immediately in case of an
emergency that requires a decision concerning your health care.
Either keep this document where it is immediately available to
your agent and alternate agents or give each of them an executed
copy of this document. You may also want to give your doctor an
executed copy of this document.
(1) DESIGNATION OF HEALTH CARE AGENT. I,
(insert your name and address)
do hereby designate and appoint:
(insert name, address, and telephone number of one individual only as your agent to make health care decisions for you. None
of the following may be designated as your agent: (1) your treating
health care provider, (2) a nonrelative employee of your treating
health care provider, (3) an operator of a community care facility,
or (4) a nonrelative employee of an operator of a community care
facility.) as my attorney in fact (agent) to make health care decisions for me as authorized in this document. For the purposes of
this document, "health care decision" means consent, refusal of
consent, or withdrawal of consent to any care, treatment, service,
or procedure to maintain, diagnose, or treat an individual's physical or mental condition.
(2) CREATION OF DURABLE POWER OF ATTORNEY FOR
HEALTH CARE. By this document I intend to create a durable
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[Vol. 14:215
power of attorney for health care.
(3) GENERAL STATEMENT OF AUTHORITY GRANTED.
Subject to any limitations in this document, I hereby grant to my
agent full power and authority to make health care decisions for
me to the same extent that I could make such decisions for myself
if I had the capacity to do so. In exercising this authority, my
agent shall make health care decisions that are consistent with
my desires as stated in this document or otherwise made known to
my agent, including, but not limited to, my desires concerning obtaining or refusing or withdrawing life-prolonging care, treatment,
services, and procedures and informing my family or next of kin of
my desire, if any, to be an organ or tissue donor.
(If you want to limit the authority of your agent to make
health care decisions for you, you can state the limitations in paragraph (4) ("Statement of Desires, Special Provisions, and Limitations") below. You can indicate your desires by including a
statement of your desires in the same paragraph.)
(4) STATEMENT OF DESIRES, SPECIAL PROVISIONS,
AND LIMITATIONS. (Your agent must make health care decisions that are consistent with your known desires. You can, but
are not required to, state your desires in the space provided below.
You should consider whether you want to include a statement of
your desires concerning life-prolonging care, treatment, services,
and procedures. You can also include a statement of your desires
concerning other matters relating to your health care. You can also make your desires known to your agent by discussing your desires with your agent or by some other means. If there are any
types of treatment that you do not want to be used, you should
state them in the space below. If you want to limit in any other
way the authority given your agent by this document, you should
state the limits in the space below. If you do not state any limits,
your agent will have broad powers to make health care decisions
for you, except to the extent that there are limits provided by law.)
In exercising the authority under this durable power of attorney for health care, my agent shall act consistently with my desires as stated below and is subject to the special provisions and
limitations stated below:
(a) Statement of desires concerning life-prolonging care,
treatment, services, and procedures:
(b) Additional statement of desires, special provisions, and li-
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279
mitations regarding health care decisions:
(c) Statement of desire regarding organ and tissue donation:
Initial if applicable:
[ ] In the event of my death, I request that my agent inform
my family/next of kin of my desire to be an organ and tissue donor,
if possible.
(You may attach additional pages if you need more space to
complete your statement. If you attach additional pages, you must
date and sign EACH of the additional pages at the same time you
date and sign this document.)
(5) INSPECTION AND DISCLOSURE OF INFORMATION
RELATING TO MY PHYSICAL OR MENTAL HEALTH. Subject
to any limitations in this document, my agent has the power and
authority to do all of the following:
(a) Request, review, and receive any information, verbal or
written, regarding my physical or mental health, including, but
not limited to, medical and hospital records.
(b) Execute on my behalf any releases or other documents
that may be required in order to obtain this information.
(c) Consent to the disclosure of this information.
(If you want to limit the authority of your agent to receive and
disclose information relating to your health, you must state the
limitations in paragraph (4) ("Statement of desires, special provisions, and limitations") above.)
(6) SIGNING DOCUMENTS, WAIVERS, AND RELEASES.
Where necessary to implement the health care decisions that my
agent is authorized by this document to make, my agent has the
power and authority to execute on my behalf all of the following:
(a) Documents titled or purporting to be a "Refusal to Permit
Treatment" and "Leaving Hospital Against Medical Advice."
(b) Any necessary waiver or release from liability required by
a hospital. ep physician, or nurse practitioner.
(7) DURATION. (Unless you specify a shorter period in the
space below, this power of attorney will exist until it is revoked.)
This durable power of attorney for health care expires on
(Fill in this space ONLY if you want the authority of your
agent to end on a specific date.)
(8) DESIGNATION OF ALTERNATE AGENTS. (You are not
required to designate any alternate agents but you may do so. Any
alternate agent you designate will be able to make the same
280 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
health care decisions as the agent you designated in paragraph
(1), above, in the event that agent is unable or ineligible to act as
your agent. If the agent you designated is your spouse, he or she
becomes ineligible to act as your agent if your marriage is dissolved.)
If the person designated as my agent in paragraph (1) is not
available or becomes ineligible to act as my agent to make a
health care decision for me or loses the mental capacity to make
health care decisions for me, or if I revoke that person's appointment or authority to act as my agent to make health care decisions for me, then I designate and appoint the following persons to
serve as my agent to make health care decisions for me as authorized in this document, such persons to serve in the order listed
below:
(A) First Alternate Agent:
(Insert name, address, and telephone number of first alternate agent.)
(B) Second Alternate Agent:
(Insert name, address, and telephone number of second alternate agent.)
(9) PRIOR DESIGNATIONS REVOKED. I revoke any prior
durable power of attorney for health care.
DATE AND SIGNATURE OF PRINCIPAL
(YOU MUST DATE AND SIGN THIS POWER OF
ATTORNEY)
I sign my name to this Statutory Form Durable Power of Attorney for Health Care on
at
(Date) (City)
(State)
(You sign here)
(THIS POWER OF ATTORNEY WILL NOT BE VALID
UNLESS IT IS SIGNED BY ONE NOTARY PUBLIC OR TWO (2)
QUALIFIED WITNESSES WHO ARE PRESENT WHEN YOU
SIGN OR ACKNOWLEDGE YOUR SIGNATURE. IF YOU HAVE
ATTACHED ANY ADDITIONAL PAGES TO THIS FORM, YOU
MUST DATE AND SIGN EACH OF THE ADDITIONAL PAGES
AT THE SAME TIME YOU DATE AND SIGN THIS POWER OF
ATTORNEY.)
STATEMENT OF WITNESSES
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(This document must be witnessed by two (2) qualified adult
witnesses or one (1) notary public. None of the following may be
used as a witness:
(1) A person you designate as your agent or alternate agent,
(2) A health care provider,
(3) An employee of a health care provider,
(4) The operator of a community care facility,
(5) An employee of an operator of a community care facility.
I declare under penalty of perjury that the person who signed
or acknowledged this document is personally known to me to be
the principal, that the principal signed or acknowledged this durable power of attorney in my presence, that the principal appears
to be of sound mind and under no duress, fraud, or undue influence, that I am not the person appointed as attorney in fact by
this document, and that I am not a health care provider, an employee of a health care provider, the operator of a community care
facility, nor an employee of an operator of a community care facility.
Option 1 - Two (2) Qualified Witnesses:
Signature:
Residence Address:
Print Name:
Date:
Signature:
Residence Address:
Print Name:
Date:
Option 2 - One Notary Public
Signature:
, Notary Public
Print Name:
Date:
My commission expires on:
(AT LEAST ONE OF THE ABOVE WITNESSES OR THE
NOTARY PUBLIC MUST ALSO SIGN THE FOLLOWING
DECLARATION.)
I further declare under penalty of perjury that I am not related to the principal by blood, marriage, or adoption, and, to the
best of my knowledge, I am not entitled to any part of the estate of
the principal upon the death of the principal under a will now existing or by operation of law.
Signature:
Print Name:
282 ROGER WILLIAMS UNIVERSITY LAWREVIEW [Vol. 14:215
23-4.10-3 Revocation.
(a) A durable power of attorney may be revoked at any time
and in any manner by which the declarant is able to communicate
an intent to revoke, without regard to mental or physical condition. A revocation is only effective as to the attending physieiai
clinician or any health care provider or emergency medical services personnel upon communication to hat ph'ysieia the attending
clinician or health care provider or emergency medical services
personnel by the declarant or by another who witnessed the revocation.
(b) The attending physieia clinician or health care provider
shall make the revocation a part of the declarant's medical record.
(c) For emergency medical services personnel, the absence of
reliable documentation shall constitute a revocation of a durable
power of attorney.
23-4.10-4 Recording contents of durable power of attorney.
The attending phyieian clinician who had knowledge of the
existence of a durable power of attorney shall note in the medical
record the existence of the durable power of attorney. In the instance where the durable power of attorney includes a DNR (do
not resuscitate) order, that should also be entered into the medical
record.
23-4.10-5 Treatment of patients.
(a) A patient has the right to make decisions regarding use of
life sustaining procedures as long as the patient is able to do so. If
a patient is not able to make those decisions, the durable power of
attorney governs decisions regarding use of life sustaining procedures.
(b) This chapter does not prohibit any action considered necessary by the attending physiei n clinician, health care provider,
or emergency medical services personnel for comfort, care, or alleviation of pain.
(c) The durable power of attorney of a patient known to the
attending physieian clinician to be pregnant shall be given no
force or effect as long as it is probable that the fetus could develop
to the point of live birth with continued application of life sustaining procedures.
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23-4.10-6 Transfer of patients.
An attending physiei t clinician or health-care provider who
refuses to comply with the durable power of attorney of a patient
pursuant to this chapter shall make the necessary arrangements
to effect the transfer of the patient to another physician who will
effectuate the durable power of attorney of the patient.
23-4.10-7 Inmunities.
(a) In the absence of actual notice of the revocation of a durable power of attorney, the following, while acting in accordance
with the requirements of this chapter, are not subject to civil or
criminal liability or charges of unprofessional conduct:
(1) A physician or nurse practitioner who acts pursuant to the
terms of a durable power of attorney or at the direction of the
agent so designated by a durable power of attorney.
(2) A person who acts under the direction or with the authorization of a physician or nurse practitioner.
(3) The health-care provider owning or operating the facility
in which the terms of durable power of attorney are implemented.
(4) Emergency medical services personnel who act pursuant to
an advanced directive protocol.
(5) Emergency medical services personnel who proceed to provide life-sustaining treatment to a patient pursuant to a revocation communicated to them.
(6) An agent acting in accordance with a valid durable power
of attorney.
(b) A physician or nurse practitioner is not subject to civil or
criminal liability for actions under this chapter which are in accordance with reasonable medical standards.
23-4.10-8 Penalties.
(a) Failure of a physician or nurse practitioner to transfer a
patient pursuant to § 23-6 shall constitute "unprofessional conduct" as that term is used in § 5-37-5.1.
(b) Any person who willfully conceals, cancels, defaces, or obliterates the durable power of attorney of another absent the declarant's consent or direction or who falsifies or forges a revocation of
the durable power of attorney of another shall be imprisoned for
no less than six (6) months but no more than one year, or shall be
fined not less than two thousand dollars ($2,000) but no more than
five thousand dollars ($5,000).
(c) Any person who falsifies or forges the durable power of at-
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torney of another, or willfully conceals or withholds personal
knowledge of a revocation as provided in § 23-4.10-3 with the in-
tent to cause a withholding or withdrawal of life sustaining procedures, shall be imprisoned for no less than one year but no more
than five (5) years, or shall be fined not less than five thousand
dollars ($5,000) but no more than ten thousand dollars ($10,000).
(d) In addition to the sanctions and/or penalties previously
mentioned in this section, any physician or person referred to in
this section or in violation of this section, shall be civilly liable.
Title 23 Health and Safety
Chapter 23-4.11 Rights of the Terminally Ill Act
23-4.11-1 Purpose.
(a) The legislature finds that adult persons have the fundamental right to control the decisions relating to the rendering of
their own medical care, including the decision to have life sustaining procedures withheld or withdrawn in instances of a terminal
condition.
(b) In order that the rights of patients may be respected even
after they are no longer able to participate actively in decisions
about themselves, the legislature declares that the laws of the
state shall recognize the right of an adult person to make a written declaration instructing his or her physician or nurse practitioner to withhold or withdraw life sustaining procedures in the
event of a terminal condition.
23-4.11-2 Definitions.
The following definitions govern the construction of this chapter:
(1) "Advance directive protocol" means a standardized, statewide method developed for emergency medical services personnel
by the department of health and approved by the ambulance service advisory board, of providing palliative care to, and withholding life-sustaining procedures from, a qualified patient.
(2) "Artificial feeding" means the provision of nutrition or hydration by parenteral, nasogastric, gastric or any means other
than through per oral voluntary sustenance.
(3) "Attending physician" "Attending clinician" means the
physician or nurse practitioner who has primary responsibility for
the treatment and care of the patient.
(4) "Declaration" means a witnessed document executed in ac-
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285
cordance with the requirements of § 23-4.11-3.
(5) "Director" means the director of health.
(6) "Emergency medical services personnel" means paid or volunteer firefighters, law enforcement officers, first responders,
emergency medical technicians, or other emergency services personnel acting within the ordinary course of their professions.
(7) "Health care provider" means a person who is licensed,
certified, or otherwise authorized by the law of this state to administer health care in the ordinary course of business or practice of
a profession.
(8) "Life sustaining procedure" means any medical procedure
or intervention that, when administered to a qualified patient,
will serve only to prolong the dying process. "Life sustaining procedure" shall not include any medical procedure or intervention
considered necessary by the attending physieian clinician to provide comfort and care or alleviate pain.
(9) "Person" means an individual, corporation, business trust,
estate, trust, partnership, association, government, governmental
subdivision or agency, or any other legal entity.
(10) "Physician" means an individual licensed to practice medicine in this state.
(11) "Nurse practitioner" means an individual licensed as a
certified registered nurse practitioner pursuant to § 5-34-3.
(4) (12) "Qualified patient" means a patient who has executed a declaration in accordance with this chapter and who has
been determined by the attending physician to be in a terminal
condition.
424 (13) "Reliable documentation" means a standardized,
state-wide form of identification such as a nontransferable necklace or bracelet of uniform design, adopted by the director of
health, with consultation from the local community emergency
medical services agencies and licensed hospice and home health
agencies, that signifies and certifies that a valid and current declaration is on file and that the individual is a qualified patient.
43) (14) "Terminal condition" means an incurable or irreversible condition that, without the administration of life sustaining
procedures, will, in the opinion of the attending physician, result
in death.
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23-4.11-3 Declaration relating to use of life sustaining
procedures.
(a) A competent individual eighteen (18) years of age or older
may at any time execute a declaration governing the withholding
or withdrawal of life sustaining procedures. The declaration must
be signed by the declarant, or another at the declarant's direction
in the presence of two (2) subscribing witnesses who are not related to the declarant by blood or marriage.
(b) A physician or other health care provider who is provided
a copy of the declaration shall make it a part of the declarant's
medical record.
(c) A declaration has operative effect only when:
(1) The declaration is communicated to the attending physieie clinician;
(2) The declarant is determined by the attending physieian clinician to be in a terminal condition; and
(3) The declarant is unable to make treatment decisions.
(d) A declaration may, but need not, be in the following form:
DECLARATION
I,
, being of sound mind willfully and voluntarily make known my desire that my dying shall not be artificially
prolonged under the circumstances set forth below, do hereby declare:
If I should have an incurable or irreversible condition that
will cause my death and if I am unable to make decisions regarding my medical treatment, I direct my attending physician to
withhold or withdraw procedures that merely prolong the dying
process and are not necessary to my comfort, or to alleviate pain.
This authorization includes ( ) does not include ( ) the withholding or withdrawal of artificial feeding (check only one box
above).
Signed this
__
day of
,
.
Signature;
Address
The declarant is personally known to me and voluntarily
signed this document in my presence.
Witness Witness
Address Address
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23-4.11-6 Treatment of qualified patients.
(a) A qualified patient has the right to make decisions regarding use of life sustaining procedures as long as the patient is able
to do so. If a qualified patient is not able to make those decisions,
the declaration governs decisions regarding use of life sustaining
procedures.
(b) This chapter does not prohibit any action considered necessary by the attending physieia' clinician or comfort and care or
alleviation of pain.
(c) The declaration of a qualified patient known to the attending physieian clinician to be pregnant shall be given no force or effect as long as it is probable that the fetus could develop to the
point of live birth with continued application of life sustaining
procedures.
23-4.11-8 Immunities.
(a) In the absence of actual notice of the revocation of a declaration, the following, while acting in accordance with the requirements of this chapter, are not subject to civil or criminal liability
or charges of unprofessional conduct:
(1) A physician or nurse practitioner who causes the withholding or withdrawal of life sustaining procedures from a qualified
patient.
(2) A person who participates in the withholding or withdrawal of life sustaining procedures under the direction or with
the authorization of a physician or nurse practitioner.
(3) The health care provider owning or operating the facility
in which the withholding or withdrawal occurs.
(4) Emergency medical services personnel who cause or participate in the withholding or withdrawal of life-sustaining procedures under the direction of or with the authorization of a physician or nurse practitioner or who on receipt of reliable
documentation follow an advance directive protocol.
(5) Emergency medical services personnel who proceed to provide life-sustaining treatment to a qualified patient pursuant to a
revocation communicated to them.
(b) A physician or nurse practitioner is not subject to civil or
criminal liability for actions under this chapter which are in accordance with reasonable medical standards.
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23-4.11-9 Penalties.
(a) Failure of a physician or nurse practitioner to transfer a
patient pursuant to § 23-4.11-7 shall constitute "unprofessional
conduct" as that term is used in § 5-37-5.1.
(b) Failure of a physician or nurse practitioner to record the
determination of terminal condition pursuant to § 23-4.11-5 shall
constitute "unprofessional conduct" as that term is used in § 5-375.1.
(c) Any person who willfully conceals, cancels, defaces, or obliterates the declaration of another absent the declarant's consent
or direction or who falsifies or forges a revocation of the declaration of another shall be imprisoned for no less than six (6) months
but no more than one year, or shall be fined not less than two
thousand dollars ($2,000) but no more than five thousand dollars
($5,000).
(d) Any person who falsifies or forges the declaration of
another, or willfully conceals or withholds personal knowledge of a
revocation as provided in § 23-4.11-4 with the intent to cause a
withholding or withdrawal of life sustaining procedures, shall be
imprisoned for no less than one year but no more than five (5)
years, or shall be fined not less than five thousand dollars ($5,000)
but no more than ten thousand dollars ($10,000).
(e) In addition to the sanctions and/or penalties mentioned in
this section, any physician or person referred to in this section or
in violation of this section, shall be civilly liable.
23-4.11-14 Instructional bracelets.
(a) Upon the request of a physician or nurse practitioner, acting on behalf of a qualified patient who does not wish to be resuscitated, the department of health shall issue a nontransferable,
nonremovable bracelet to a specific qualified patient, which will be
marked "DNR", meaning "do not resuscitate". The bracelet shall
also bear the name and address of the patient and the name, address, license number and signature of the physician who has ordered the bracelet to be affixed to the patient's wrist.
(b) If it appears that the bracelet has been tampered with, or
has been removed, any physician or emergency medical personnel
shall not follow the instructions of the bracelet or former bracelet
and may resuscitate the patient.
(c) All bracelets issued by the department of health pursuant
to this section shall be registered with the fire department for the
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city or town in which the patient resides.
(d) The director of the department of health is empowered and
directed to promulgate reasonable rules and regulations consistent with this chapter to carry out the purposes of this section.
Title 23 Health and Safety
Chapter 23-5 Reports of Disease and Disability
23-5-9 Upon death - Report of infectious disease.
(a) As used in this section, "infectious or communicable disease" includes the following:
(1) Infectious hepatitis;
(2) Tuberculosis;
(3) Rabies;
(4) Tularemia;
(5) Herpes simplex;
(6) Acquired immune deficiency syndrome;
(7) Viral hemorrhagic fever;
(8) Gonorrhea;
(9) Syphilis;
(10) Burkett's lymphoma; and
(11) Kaposi's sarcoma.
(b) Notwithstanding the provisions of §§ 40.1-5-26 and 5-37.34, when a person who has been diagnosed as having an infectious
or communicable disease dies in a hospital or other health care facility, the attending physician, nurse practitioner, or other responsible officer shall prepare a written notification describing the disease to accompany the body when the body is picked up for
disposition.
(c) Notwithstanding the provisions of §§ 40.1-5-26 and 5-37.34, when a person dies outside of a hospital or health care facility
and without an attending physician or nurse practitioner, any
family member or person making arrangements for the disposition
of the dead body who knows that the dead person has been diagnosed as having an infectious or communicable disease at the time
of death shall make known that disposition.
(d) Notwithstanding the provisions of §§ 40.1-5-26 and 5-37.34, any person who picks up or transports a dead body for disposition and who has been notified pursuant to subdivision (2) or (3) of
this section shall present a notification accompanying the dead
body to any embalmer, funeral director, or other person taking
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possession of the dead body.
(e) Information regarding a deceased's infectious or communicable disease contained in a notification required under this section shall be privileged and confidential and may be disclosed only
if the disclosure is required under state or federal laws.
(f) Any person having duties imposed upon him or her under
subsection (b), (c), or (d) of this section who knowingly refuses or
omits to perform those duties shall be subject to a fine of three
hundred dollars ($300) for a first offense, five hundred dollars
($500) for a second offense, and one thousand dollars ($1000) for a
third and subsequent offense within any calendar year.
Title 23 Health and Safety
Chapter 23-5.1 Identification of Persons Suffering
From Certain Disabilities
23-5.1-1 Identification bracelet.
Any person who has epilepsy, diabetes, a cardiac condition, or
any other type of illness that causes temporary blackouts, semiconscious periods, or complete unconsciousness, is authorized to
wear an identification bracelet with the person's name, type of illness, physician's name or nurse practitioner's name, and medication required, engraved, stamped, or imprinted on that bracelet.
Title 23 Health and Safety
Chapter 23-6 Prevention and Suppression of Contagious Diseases
23-6-11 Definitions.
As used in §§ 23-6-10 - 23-6-24:
(1) "AIDS" means the medical condition known as acquired
immune deficiency syndrome, caused by infection of an individual
by the human immunodeficiency virus (HIV).
(2) "HIV" means the human immunodeficiency virus, the pathogenic organism responsible for the acquired immunodeficiency
syndrome (AIDS).
(3) "Informed consent form" means a standardized form provided by the Rhode Island department of health to those individuals offered HIV testing. The form shall be developed by the department and shall contain the following information:
(i) The public health rationale for HIV testing and information describing the nature of the HIV disease;
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(ii) The availability and cost of HIV testing and counseling;
(iii) That test results are confidential with certain exceptions;
(iv) A list of exceptions to confidentiality of test results;
(v) That the test is voluntary and that an informed consent
form must be signed before testing;
(vi) That by signing this form the person is only acknowledging that the HIV test and counseling have been offered and/or that
he or she has declined (opted-out) the offer to be tested; and
(vii) Notwithstanding the provisions of subsections (v) and (vi)
above, in the event an individual consents to anonymous testing,
the HIV testing counselor and/or attending practitioner ordering
the test shall receive only verbal confirmation from the client that
the client understands all applicable information contained within
the informed consent form.
(4) "HIV test" means any currently medically accepted diagnostic test for determining infection of an individual by HIV.
(5) "Person" means any individual, firm, partnership, corporation, company, association, or joint stock association, state or political subdivision or instrumentality of a state.
(6) "Physician" means a person licensed to practice allopathic
or osteopathic medicine pursuant to the provisions of chapter 37 of
title 5.
(7) "Nurse practitioner" means an individual licensed as a
certified registered nurse practitioner pursuant to § 5-34-3.
(q) (8) "Services" means health care and social support services.
(8) (9) "Occupational health representative" is an individual,
within a health care facility, trained to respond to occupational,
particularly blood borne, exposures.
23-6-17 Confidentiality.
(a) It is unlawful for any person to disclose to a third party the
results of an individual's HIV test without the prior written consent of that individual, or in the case of a minor, the minor's parent, guardian, or agent, on a form that specifically states that HIV
test results may be released, except:
(1) A licensed laboratory or other health care facility which
performs HIV tests shall report test results to a patient's licensed
physician or other medical personnel who requested the test, and
to the director of the department of health, pursuant to rules and
regulations adopted for that purpose.
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(2) A physician:
(i) May enter HLV test results in the medical record, as would
be the case with any other diagnostic test;
(ii) May notify other health professionals directly involved in
the care of the individual testing positive on the HLV test, or to
whom that individual is referred for treatment;
(iii) May notify persons exposed to blood or other body fluids
of an individual who tests positive for HIV, pursuant to § 23-614(4) through (8) (exceptions) and § 23-17-31 (testing of hospitalized patients);
(iv) May notify the director of the department of children,
youth, and families, pursuant to § 23-6-14(3) (testing of a minor to
secure services); and
(v) May inform third parties with whom an HIV-infected patient is in close and continuous exposure related contact, including
but not limited to a spouse and/or partner, if the nature of the contact, in the physician's opinion or nurse practitioner's opinion,
poses a clear and present danger of HIV transmission to the third
party, and if the physician has reason to believe that the patient,
despite the physician's or nurse practitioner's strong encouragement, has not and will not inform the third party that they may
have been exposed to HIV;
(3) As permitted in subsections (b)(1), (2), (5), (6), (8), (9), (10),
(11), (12), (13), (14), and (15) of § 5-37.3-4 (confidentiality of health
care information) and § 40.1-5-26 (disclosure of confidential information under mental health law), or as otherwise required by law.
(4) By a health care provider to appropriate persons entitled
to receive notification of persons with infectious or communicable
diseases pursuant to §§ 23-5-9 (report of infectious disease upon
death) and 23-28.36-3 (notification to EMT, firefighter, police officer of infectious disease).
(b) Facilities and other health care providers subject to this
section will have documentation that each person with access to
any confidential information understands and acknowledges that
the information may not be disclosed except as provided herein.
The director shall establish protocols for collecting, maintaining
and transferring the information (and ultimately destroying the
information) to ensure the integrity of the transfer, and, if possible, the director may suspend any transfer, even to CDC, if he or
she is not confident that the transfer is secure.
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Title 23 Health and Safety
Chapter 23-7.1 Rodent Control and Eradication
23-7.1-7 Bite report not violation of physieian health
care provider-patient relationship.
Any report of rodent bites made pursuant to regulations
promulgated by the director shall not be deemed a violation of the
physieian health care provider-patient relationship or otherwise
contrary to the ethics of the medical profession.
Title 23 Health and Safety
Chapter 23-10 Report of Tubercular Cases by Institutions
23-10-2 Reports by physicians or nurse practitioners.
Whenever any physician or nurse practitioner knows that any
person under his or her professional care is affected with tuberculosis, he or she shall transmit to the director of the state department of health within seven (7) days, upon blanks provided by the
state department of health for that purpose, the name, sex, age,
color, race, occupation, social condition, and residence of that person. Any physician or nurse practitioner failing or refusing to
comply with the requirements of this section shall be guilty of a
misdemeanor and on conviction shall be subject to a fine of ten
dollars ($10.00).
Title 23 Health and Safety
Chapter 23-11 Sexually Transmitted Diseases
23-11-6 Reports by physicians or nurse practitioners.
Any physician or nurse practitioner who diagnoses and/or
treats a case of sexually transmitted disease shall immediately
make a report of that case to the state department of health in the
manner and form that the department shall direct.
23-11-15 Report not violation of physieian health care
provider-patient relationship.
Any report made pursuant to the provisions of this chapter
shall not be deemed a violation of the physieia health care provider-patient relationship or otherwise contrary to the ethics of the
medical profession.
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Title 23 Health and Safety
Chapter 23-17 Health Care Quality Program
23-17-10.5 Medical director and attending physician or
nurse practitioner file.
Each nursing facility licensed under this chapter shall designate a physician to serve as medical director. The medical director
shall be responsible for implementation of resident care policies
and for the coordination of medical care in the facility. Such responsibilities shall include, but not be limited to: the implementation of facility policies and procedures related to the medical care
delivered in the facility; physician and advanced practice practitioner credentialing; practitioner performance reviews; employee
health including infection control measures; evaluation of health
care delivery, including oversight of medical records and participation in quality improvement; provision of staff education on
medical issues; participation in state survey process, including the
resolution of deficiencies as needed; and such other duties and responsibilities as may be stipulated in regulations promulgated by
the department of health.
The medical director, charged with the aforementioned duties
and responsibilities for the delivery of medical care in the nursing
facility, shall be immune from civil or criminal prosecution for reporting to the board of medical licensure and discipline the unprofessional conduct, incompetence or negligence of a nursing facility
physician or limited registrant; provided, that the report, testimony or other communication was made in good faith and while acting within the scope of authority conferred by this section. Each
nursing facility shall maintain an active file of all current attending physicians or nurse practitioners including their phone number and address, an emergency phone number, their current medical license number, and their preferred hospital admitting
privileges. The director of the department of health is hereby authorized to promulgate rules and regulations to implement the
provisions of this section.
Title 23 Health and Safety
Chapter 23-17.5 Rights of Nursing Home Patients
23-17.5-6 Care by physician or nurse practitioner - Disclosure of patient's medical condition.
(a) Each patient admitted to a facility shall be and remain
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under the care of a physician as specified in policies adopted by
the governing body.
(b) Each patient shall be informed by a physician or nurse
practitioner of his or her medical condition unless medically contraindicated, as documented by a physician or nurse practitioner
in his or her medical record, and shall be afforded the opportunity
to participate in the planning of his or her medical treatment.
Title 23 Health and Safety
Chapter 23-17.18 Health Plan Modification Act
23-17.18-1 Modification of health plans.
(a) A health plan may materially modify the terms of a participating agreement it maintains with a physician only if the plan
disseminates in writing by mail to the physician the contents of
the proposed modification and an explanation, in nontechnical
terms, of the modification's impact.
(b) The health plan shall provide the physician an opportunity
to amend or terminate the physician contract with the health plan
within sixty (60) days of receipt of the notice of modification. Any
termination of a physician contract made pursuant to this section
shall be effective fifteen (15) calendar days from the mailing of the
notice of termination in writing by mail to the health plan. The
termination shall not affect the method of payment or reduce the
amount of reimbursement to the physician by the health plan for
any patient in active treatment for an acute medical condition at
the time the patient's physician terminates his, her, or its physician contract with the health plan until the active treatment is
concluded or, if earlier, one year after the termination; and, with
respect to the patient, during the active treatment period the physician shall be subject to all the terms and conditions of the terminated physician contract, including but not limited to, all reimbursement provisions which limit the patient's liability.
(c) Subsections (a) and (b) of this section shall apply to a physician or a nurse practitioner.
(e4 (d) Nothing in this section shall apply to accident-only,
specified disease, hospital indemnity, medicare supplement, longterm care, disability income, or other limited benefit health insurance policies.
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Title 23 Health and Safety
Chapter 23-24.6 Lead Poisoning Prevention Act
23-24.6-7 Screening by health care providers.
(a) The department shall promulgate regulations establishing
the means by which and the intervals at which children under six
(6) years of age shall be screened for lead poisoning. The department is also authorized to require screening for lead poisoning in
other high risk groups.
(b) Each physician or nurse practitioner registered or licensed
by Rhode Island or any agency of Rhode Island shall screen children under six (6) years of age for lead poisoning at the intervals
and using the methods specified in the regulations adopted pursuant to subsection (a). Each licensed, registered or approved
health care facility serving children under six (6) years of age, including but not limited to hospitals, clinics, and health maintenance organizations, shall take appropriate steps to ensure that
their patients receive screening for lead poisoning at the intervals
and using the methods specified in these regulations.
(c) All health care programs funded in whole or in part with
state money and having child health components shall include,
require, and/or provide for screening children under six (6) years
of age for lead poisoning at the intervals and using the methods
specified in the regulations promulgated under this section.
(d) The provisions of this section shall not apply if the parents
of the child object to the child undergoing blood lead screening on
the grounds that the screening conflicts with their religious tenets
and practices.
(e) All blood samples taken by physicians or other health care
providers licensed in Rhode Island or by licensed, registered, or
approved health care facilities in Rhode Island from children under the age of six (6) years for the purpose of screening for blood
lead level shall be sent to the state laboratory in the department
of health for laboratory analysis.
(0 The department shall, at least annually, analyze and
summarize all of the lead screening information provided by physicians, health care facilities, and laboratories and provide this information to all other local and state agencies involved with case
management and lead hazard reduction. An analysis and summary of the data shall also be made available, at least annually, to
the health care community, to the general assembly, and the gen-
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eral public in a format that is easily understandable to nontechnical readers.
23-24.6-11. Reporting of cases of lead poisoning. - Any
physician or nurse practitioner registered or licensed by Rhode
Island or any agency of Rhode Island or any employee of a licensed, registered, or approved health care facility making the diagnosis of childhood lead poisoning shall report that diagnosis to
the director within ten (10) business days of the diagnosis.